That would only be a relevant distinction if the discussion were specifically about realized damages. It is not.
The discussion is about whether or not ignoring something that is of little consequence to you diminishes a later case you might bring when something substantially similar causes you noticeable problems. The question at hand had nothing to do with damages due to piracy (direct, perceived, hypothetical, legal fiction, or otherwise).
It's confusing because the basis for the legal claim is damages due to piracy and the size of that claim probably hasn't shifted all that much. But the motivating interest is not the damages. It is the impact of the thing on their employment. That impact was not present before so no one was inclined to pursue a protracted uphill battle.
The discussion is about whether or not ignoring something that is of little consequence to you diminishes a later case you might bring when something substantially similar causes you noticeable problems. The question at hand had nothing to do with damages due to piracy (direct, perceived, hypothetical, legal fiction, or otherwise).
It's confusing because the basis for the legal claim is damages due to piracy and the size of that claim probably hasn't shifted all that much. But the motivating interest is not the damages. It is the impact of the thing on their employment. That impact was not present before so no one was inclined to pursue a protracted uphill battle.