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Re: Attorney fees

From: David Kastrup
Subject: Re: Attorney fees
Date: Sat, 12 Jul 2008 14:36:26 +0200
User-agent: Gnus/5.13 (Gnus v5.13) Emacs/23.0.60 (gnu/linux)

Tim Smith <> writes:

> In article <85fxqfqxjg.fsf@lola.goethe.zz>, David Kastrup <> 
> wrote:
>> What about "a licensee" did you not understand?  The author himself (as
>> in the multiple-license example I gave) is certainly not bound by the
>> license.  Anyway, the terms of the license do not even demand that a
>> licensee do not distribute for profit.  They just stipulate that
>> whatever you distribute, has to be _licensed_ under the GPL at no
>> _additional_ cost.  So there are even business models for
>> redistributors.  They have to be competitive at their redistribution
>> business, and every recipient is a potential competitor.  That makes it
>> a market with tight margins, but tight is not the same as negative.
> Assume P sues D for copyright violation, over software that P makes 
> available under a free software license.  What could P ask for in 
> monetary damages?

What he would have demanded for non-free licensing.

> In the US, you can ask for your actual damages, and for D's profits
> that are attributable to the violation (less any of those that are
> already counted as part of the actual damages).
> What would actual damages be?  Typically, this is the profits you
> didn't make, because people bought from the infringer instead of from
> you.  But when you make your product available for free, you don't
> really have lost profits.

But we are not talking about "making a product available for free", but
"making it available under the conditions of the GPL", whether for free
or not.  If the perpetrator could have made use of the software under
those conditions, he would not have to violate the license.  So we are
talking about a _different_ use then the one that is being licensed
under the GPL.  A product that has _not_ been made available for $0.  If
the author has not yet made this product available (namely a licensing
under conditions the perpetrator would have used), then he is, of
course, free to name the price he would take for said product.  Or
declare that he would not have offered this product.  That does not make
it permissable to grab it anyway.

David Kastrup, Kriemhildstr. 15, 44793 Bochum

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