How Copyright Infringement Works in the Real World

N.B.: Analysis given below is per USA copyright law, and other considerations no doubt apply in Europe and elsewhere. As usual, if you have a specific real-world situation requiring legal advice, you should not seek it here, but should get help from competent professional legal counsel. Author Rick Moen is not an attorney, and is not purporting to give specific legal advice to any party. Author Lawrence Rosen is an attorney, but is almost certainly not your attorney, and isn't offering specific legal advice here, either.

From rick Thu Jul 12 13:13:39 2007
Date: Thu, 12 Jul 2007 13:13:39 -0700
Subject: Re: [linux-elitists] ultra 20 m2
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.11+cvs20060403

Quoting Steven Critchfield (

> A derivative work is one that INCORPORATES portions of other code.

Actually, that incorporates substantial amounts of copyrightable expressive elements. Such copying can be either literal or non-literal: See, for USA jurisdictions, the decision in Micro Star v. FormGen, Inc., 154 F.3d 1107 9th Cir. 1998, where a competitor's game program was ruled derivative even though it didn't have a single line of code in common with the original; the copy incorporated audiovideo display data, a protected creative work, from the original, thereby incorporating the "story" (not the story idea, but its various expressive elements) of the original game.

> This is why some people consider the GPL to be a viral license.
> Specifically if you can't stay at arms distance from it,....

...which means nothing more than avoiding using someone else's copyrighted creative works without permission....

> you are likely going to be required to release under the terms of the
> GPL.

Rubbish. Infamous misinformation, at that.

Let's say I was working, some years back, at a Linux firm when one of these issues came up. I could probably name the firm without harm because it can't seem to make up its mind what its name is, but that's a bad habit, so I won't.

Let's say an e-mail request came in, one morning, for matching source code access per the terms of GPLv2 clause 3b from a pleasant-sounding guy at Mountain View Data, who noted that the firm had published a binary RPM of an ndmp backup utility coded from a programmer in, say, New Hampshire. He noted that the firm's version, which it published as part of a Red Hat variant distro for clusters, seemed to have improvements, and he wanted to see them.

This was referred to me as the firm's unofficial licensing guy. The request sounded sensible to me, and so I inquired with Software Engineering about source -- and they panicked. It turned out that some failure of communication between Professional Services and Software Engineering had permitted some code from two of the firm's major business partners, which was proprietary and shared under NDA, had been added to the GPL ndmp by one department, and then released to the public by the other department without double-checking code provenance.[1] I sent a summary of the situation to Jay S., the chief company counsel, waited half an hour, and went to knock on his door.

Now, Jay is a very sharp fellow, and I was always proud that Jay considered me relatively clueful for a non-lawyer, so he would often let me work things out rather than hand me explanations on a platter.

RM: Let me guess: We're not going to provide source code to the Mountain View Data guy.

JS: No, we aren't.

RM: But we are obligated to do so under the terms of GPLv2 clause 3b that we accepted when we made derivative works and redistributed, right?

JS: Yes.

RM: Hold on. Let me work this out.... Failing to provide the source violates the New Hampshire guy's copyright, which is a tort, because we've been carrying out actions permitted only if we meet that obligation.... This is going to be one of those situations where we are forced by circumstances to choose between two torts, and so are picking the one that's harmless, right?

JS: Right.

RM: OK, complying with the request would mean violating our contracts with [names of the two heavy-hitter business partners], and being in breach of contract with them would be very bad, subjecting us to possible serious tort litigation as well as souring important relationships and ruining our reputation generally. So, very bad outcomes if we do that.

On the other hand, let's say that we cease offering the modified ndmp package to all outside parties right now. We've been violating the New Hampshire guy's copyright in a very minor way up until now, but (1) he almost certainly didn't know about it, and didn't complain, (2) he's probably suffered about zero demonstrable economic loss aka "actual damages", which is all (other than enjoining further infringement) that's even potentially available unless one has registered one's copyright with the Library of Congress either prior to infringement or within three months of publication, (3) almost no open source coder bothers to register (which allows collection of statutory damages plus attorney's fees), because it takes $35 and some paperwork.

The New Hampshire guy would have standing to sue, but isn't motivated, isn't annoyed at us, and couldn't collect anything -- and we're just about to fix the only thing that could annoy him. The Mountain View guy completely lacks standing concerning the ndmp code (not being the affected copyright owner), and therefore couldn't even potentially sue anyone.

JS: Right.

RM: So, we're going to reply back to the Mountain View Data guy saying, "We're really sorry for the inconvenience, but the modified ndmp code was made available in binary RPM form accidentally, and should not have been. Accordingly, we've removed it from the ftp site." And thus we'll have fixed the problem and done the right thing.

JS: You got it.

Another case that should be more familiar: NeXT, Inc. started distributing binary-only releases of modified gcc, hacked to include ObjC (and, IIRC, C++?) support. FSF asked politely for the source to their changes; Jobs and company initially stated that this was contrary to their company policy.

What happened next is frequently misrepresented, in recountings. It is -not- true that NeXT, Inc. was "required" to release its source modifications to gcc under GPLv2. It had been committing the tort of copyright violation, but tort law nowhere has the power to compel violators to release their changes to the public. That's not how it works.

If Jobs had wished, Next, Inc. could have said something like "Oh, we misunderstood, but wish to do the right thing, and are therefore ceasing effective immediately to distribute our modified gcc. We apologise for any problems this causes."

What would FSF's recourse have been? Absent gcc copyright registration, it could have sued for an injunction ordering cessation of infringement (pointless, as it would have already ceased), and for actual damages, which would have been nil. With copyright registration, it could have done the same, but sought statutory damages plus attorney's fees. Statutory damages are in a range subject to the judge's discretion, but, if defendant credibly claims to have been "not aware and had no reason to believe" they were infringing copyright, damages would typically be $200 per work.[2] So, FSF would have about zero motivation to sue, even if they hated NeXT, Inc.'s guts and wanted to punish it.

My point: NeXT, Inc. elected to give back source code, after the obligatory initial period when they behaved like jerks, not because they had to (which they absolutely did not), but rather because it was greatly to the company's advantage to be able to give/sell customers compilers with enhanced language support.

So, Steven: Please do not continue to spread that ridiculous and erroneous assertion about infringers supposedly being "required" to release changes. It's done more than enough damage, over the years.



From rick Thu Jul 12 14:42:21 2007
Date: Thu, 12 Jul 2007 14:42:22 -0700
Subject: Re: [linux-elitists] ultra 20 m2
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.11+cvs20060403

Quoting Steven Critchfield (

> <sniped large and very informational examples>

Yr. welcome, sir. I've been meaning to publish some account of that illustrative incident at the unnamed Very Ancient Linux Systems firm, specifically because this misconception is so widespread, so this was a welcome opportunity.

> Okay, so the required wording is over the top. One would be required to
> release as GPL or GPL compatible license code that one still wishes to
> distribute. The alternative is to stop distribution and hope that the
> limited damage created isn't worth the original authors wishing to sue.

I suppose a third alternative might be to not care if the authors sue. (See below.) The main point is: Remedies for infringement are limited to ones traditional for torts (a term meaning failures of private duties to other firms or companies, resulting in non-criminal wrongful acts), and simply don't ever include court-mandated source release.

An infringed copyright owner can sue for:

In the staggeringly unlikely event that the owner has also filed a timely copyright registration with LoC, and paid his/her $35:

So, plaintiff's haul is likely to be laughably small, which underlines his/her lack of motive for suing in the first place.

Cheers,           "I don't like country music, but I don't mean to denigrate
Rick Moen         those who do.  And, for the people who like country music,         denigrate means 'put down'."      -- Bob Newhart

From rick Thu Aug 2 12:02:01 2007
Date: Thu, 2 Aug 2007 12:02:01 -0700
Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

Quoting Lawrence Rosen (

> Frankly, I haven't seen any case where a GPL copyright owner has risked a
> lawsuit to force the disclosure of a derivative work either, but that one
> I'd be willing to take to court, perhaps even on contingency.

Do you really think you'd find any judge willing to order that sort of specific performance as an equitable remedy, when lesser remedies involving injunctive relief and (if applicable) damages would more than suffice and are prescribed by statute? You're the lawyer, my good sir, but I have my doubts.

Real-world examples, with only some specific corporate names omitted:

From: Lawrence Rosen (
Date: Thu, 2 Aug 2007 12:58:37 -0700
Organization: Rosenlaw & Einschlag
Subject: RE: conducting a sane and efficient GPLv3, LGPLv3 Review

If the GPL is enforced on contract grounds, I'd seek specific performance, which is a contract remedy. If enforced as a bare license under copyright law, I don't believe specific performance is an allowed remedy.

I'd argue both contract and license, even though the FSF/SFLC pretends the GPL can't be a contract.


From rick Thu Aug 2 15:07:41 2007
Date: Thu, 2 Aug 2007 15:07:41 -0700
Subject: Re: conducting a sane and efficient GPLv3, LGPLv3 Review

Quoting Lawrence Rosen (

> If the GPL is enforced on contract grounds, I'd seek specific performance,
> which is a contract remedy.

Makes sense -- but, depending of course on the facts of the case, I would think most defendants would assert mistake and resulting lack of offer/acceptance, which defence if credible would reduce the case to one of simple copyright infringement again. Also, my dusty old business-law-class notes on contract law say that specific performance is available as a remedy for breach of contract only if the usual remedy in law (i.e., damages) is "inadequate", e.g., where it involves unique real estate properties. In software cases, remedies in law strike me as generally perfectly adequate in the legal sense of that term -- and customary.

Also, my notes say specific performance is available only if the contract provision to be enforced against the tort-feasing party is "just and reasonable". E.g., requiring Oracle Corporation to re-release Oracle RDBMS under GPLv2 just because the company included a third-party GPL library wouldn't fly, on those grounds, especially when (again) damages are an alternative and traditional remedy.

Also per my notes, courts grant specific performance decrees in contract cases only if the contract is "sufficiently certain to make the precise act which is to be done clearly ascertainable". My own estimate is that GPLv[23] wouldn't qualify unless amended to say "You agree that you will issue any derivatives of the covered work under the same terms as the covered work itself, even if it's a proprietary codebase for which you charge ghastly amounts of money, and yes we do mean you, Mr. Ellison."

> I'd argue both contract and license, even though the FSF/SFLC pretends
> the GPL can't be a contract.

Quibble: I may be misremembering, but my recollection is that Moglen et alii basically say it needn't be read as a contract.