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Re: Attorney fees

From: Tim Smith
Subject: Re: Attorney fees
Date: Sat, 12 Jul 2008 05:26:33 -0700
User-agent: MT-NewsWatcher/3.5.3b2 (Intel Mac OS X)

In article <85fxqfqxjg.fsf@lola.goethe.zz>, David Kastrup <> 
> 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?

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.  It's hard to imagine actual damages being more than $0.

There's also D's profits that are attributable to the infringement.  I 
can see there being money there, but it's going to be a messy argument.

Fortunately for P, in the US there is another alternative they can go 
for, called "statutory damages".  These range from $750/work to 
$30000/work, with the court deciding the amount.  The low end drops to 
$200/work if D shows they did not know and had no reason to believe they 
were infringing, and the high end goes up to $150000/work if the 
infringement was willful.

Unfortunately for most free software P's, statutory damages are only 
available if the work was registered with the copyright office before 
the infringement, or within three months of publication.  Most free 
software authors do not bother with copyright registration.

--Tim Smith

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