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Re: Is the GPL all encompassing?


From: amicus_curious
Subject: Re: Is the GPL all encompassing?
Date: Mon, 22 Sep 2008 14:54:25 -0400


"Hyman Rosen" <address@hidden> wrote in message news:address@hidden
amicus_curious wrote:
What is still way up in the air is the matter of compensation due to the infringed party. If that becomes a trivial outcome, there may as well be no protection at all. In order to show value, the author will have to show that a market exists for the infringed material.

You are missing the point of the JMRI case. The courts will
not allow the exclusive rights of copyright holders to be
vitiated just because they are not asking for money in
exchange for the right to copy.

I agree that is true.


No market is required.
Copying in violation of license is copyright infringement,
and those who do so will be required to stop and will be
liable for statutory infringement.

The court said "Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir. 2001) (Program creator Aderived value from the distribution [under a public license] because he was able to improve his Software based on suggestions sent by end-users. . . . It is logical that as the Software improved, more end-users used his Software, thereby increasing [the programmer=s] recognition in his profession and the likelihood that the Software would be improved even further.."

It seems to say that there has to be some defined economic advantage still for the plaintiff to show. With no showing of additional values, the minimum statutory damage would seem to be limited to $750 per work, of which there is only one. So Jacobsen could get $750 and maybe court costs for his trouble and that would be it. Alternately, Kratzer could simply recode the pieces in question.

Nothing here says that Kratzer could not keep his changes to himself either.


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