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Re: Attorney fees

From: rjack
Subject: Re: Attorney fees
Date: Sat, 12 Jul 2008 10:13:08 -0400
User-agent: Thunderbird (Windows/20080421)

Tim Smith wrote:
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?

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.

Unfortunately for P's, statutory damages are unavailable to vindicate violations of "moral rights" under U.s. law:

“American copyright law, as presently written, does not recognize moral rights
or provide a cause of action for their violation, since the law seeks to
vindicate the economic, rather than the personal rights of authors.”). Gilliam
v. American Broadcasting Cos., 538 F.2d 14, 24 (2nd Cir. 1976).

There are *no* scope of use restrictions in the GPL contract's grant of permissions, therefore any action filed for purported GPL violations *must* fall under the common law of contracts. The Copyright Act cannot be used as authority to sue for damages alleged from GPL violations. There are no monetary damages available under contract law either -- "no charge to all third parties".

He is a link to an exchange (1999) between Prof. Micheal Davis of Clevland State University and Stallman explaining to RMS that the GPL was a contract:

It is sad to see that Moglen and Stallman have deliberately misled (and fleeced) all those GPL contributors for all those years. It *has* been profitable for Eben Moglen though... $437,000 dollars in the past two years.


"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." -- John Adams, 'Argument in Defense of the Soldiers in the Boston Massacre Trials,' December 1770

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