Protecting the open-source license commons [LWN.net]

Protecting the open-source license commons

Posted Nov 4, 2018 11:20 UTC (Sun) by pabs (subscriber, #43278)
In reply to: Protecting the open-source license commons by paulj
Parent article: Protecting the open-source license commons

Putting a price on distribution outside of the terms of the copyleft licence that was given seems like it would be in conflict with getting non-compliance stopped as it basically amounts to offering a proprietary license, which our J presumably is not interested in doing. Also in some situations (like the Linux kernel) it would be impossible to achieve agreement from all copyright holders.

Can you really say in court "you are violating our copyright, you must pay us one trillion dollars to not get a proprietary license" for copyleft software that is usually available for only the cost of license compliance (which is usually trivial)?

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Protecting the open-source license commons

Posted Nov 4, 2018 11:35 UTC (Sun) by farnz (subscriber, #17727) [Link]

Putting a price on it means two things, in practice (at least in the jurisdictions I understand well enough to talk about - check with your lawyer first):

It opens up the possibility of punitive damages or fines - given that they did not negotiate paying beforehand, and they should have done, there's now legal wiggle room to deprive them of any possibility of making a profit from infringement. E.g. if a device costs $20, and includes copyright infringement to the tune of $1 per device, a court can legitimately take $1 per device in damages to the copyright holder, plus $19 in fines or damages depending on jurisdiction, resulting in you making a loss on every device sold.
It makes certain classes of injunction possible; if there's no financial damage, then there's no cause to recall the devices from all buyers, or to prevent the copyright holder from continuing to sell them. If there's financial damages, then you can stop the sale while the case is decided, and recall of all sold devices is an option. If there's no financial damage, then there's no reason to stop the sale of infringing devices until after the case is decided, and there's no harm done by leaving previously sold devices in customer hands.

One of the problems is that different jurisdictions have different rules - and you need your enforcement regime to handle that in a sane way.

Protecting the open-source license commons

Posted Nov 4, 2018 12:35 UTC (Sun) by paulj (subscriber, #341) [Link]

That J Random Developer gives a price for otherwise unlicensed use of their portion of the code, does not mean they're giving a licence of other portions of the code that others have copyright to. It doesn't stop those /other/ copyright holders from also naming their own price, or taking their own action, as they wish. It does not mean there is any ongoing licence even. It need not mean the infringing party can continue to distribute or even use the code.

And yes, a copyright holder _can_ name their price. That's precisely what copyright is intended to allow the likes of J to do - to have economic control over various uses of their work. That J chooses to allow certain uses for no monetary price under certain conditions (e.g. copyleft terms, perhaps because of a belief in a wider social good), does not mean J gives up the right to name a price for uses under /other/ conditions. And indeed, J _should retain that right_ if J ever wishes to be able to enforce the non-monetary licence without having to spend vast sums of money (that many developers will not be able to afford).

Anyone who does not like the copyleft conditions, or feels the price for other use/distribution is unreasonably high, is still quite free to not use/distribute the work (there's a clause in the GPL about this ;) ).

A set of "community principles" which try estop J from ever being able to name a price on non-copyleft use is a set of principles that ultimately render that licence literally valueless and hence practically unenforceable (in at least some places, for many private individuals), if held to. Which suits the corporate abusers no end.

Protecting the open-source license commons

Posted Nov 4, 2018 18:59 UTC (Sun) by rgmoore (✭ supporter ✭, #75) [Link]

Putting a price on distribution outside of the terms of the copyleft licence that was given seems like it would be in conflict with getting non-compliance stopped as it basically amounts to offering a proprietary license, which our J presumably is not interested in doing.

Not really. At least under American copyright law- and I believe something similar is true elsewhere- the process of dealing with past violations is separate from future ones. So a copyright holder can demand compensation for past copyright violations and an injunction to prevent the violator from continuing to infringe. It would be very strange if the law did otherwise. Why should a copyright holder be required to choose between being paid for lost value from previous violations and the power to control distribution in the future?

Consider the case of a movie studio that discovers somebody selling unlicensed copies of their movies. They're well within their rights to demand all the money the unlicensed seller made by selling the unlicensed copies and to demand they be prevented from selling any more in the future. There's no reason the rule should be any different for software.