[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
Re: Attorney fees
From: |
rjack |
Subject: |
Re: Attorney fees |
Date: |
Sat, 12 Jul 2008 10:13:08 -0400 |
User-agent: |
Thunderbird 2.0.0.14 (Windows/20080421) |
Tim Smith wrote:
In article <85fxqfqxjg.fsf@lola.goethe.zz>, David Kastrup <dak@gnu.org>
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:
http://lists.essential.org/upd-discuss/msg00131.html
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.
Sincerely,
Rjack
"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
- Re: Attorney fees, (continued)
- Re: Attorney fees, Hyman Rosen, 2008/07/13
- Re: Attorney fees, David Kastrup, 2008/07/11
- Re: Attorney fees, Alexander Terekhov, 2008/07/11
- Re: Attorney fees, David Kastrup, 2008/07/12
- Re: Attorney fees, Tim Smith, 2008/07/12
- Re: Attorney fees, David Kastrup, 2008/07/12
- Re: Attorney fees, Tim Smith, 2008/07/12
- Re: Attorney fees, David Kastrup, 2008/07/12
- Re: Attorney fees, John Hasler, 2008/07/12
- Re: Attorney fees, Tim Smith, 2008/07/12
- Re: Attorney fees,
rjack <=
- Re: Attorney fees, Alexander Terekhov, 2008/07/12
- Re: Attorney fees, Hyman Rosen, 2008/07/13