Posted by: Anonymous Coward
on November 21, 2004 01:31 PM
Some thoughts on points in this article and the comments:
1. Mr. Ravicher is correct that having a single copyright holder makes enforcement easier. However, developers may not want to surrender their copyrights in their work.
a. After all, it's theirs. Surrender the copyrights and it's not.
b. If all developers surrender their copyrights to a single entity, that entity could take the entire project private (remember CDDB/Gracenote?). Even if the surrender agreement has a provision prohibiting or restricting this, I would not want to be a developer involved in litigation to enforce it. I think both the outcome and remedy are far from assured.
c. An alternative might be an agreement that a developer who commits code to a project agrees that the project will act as the exclusive representative of all those who hold copyright on code in the project for enforcement of the license provisions of the project and the related interests of the copyright holders. The agreement could also provide that the copyright holder register that copyright with the national registration authority of the holder or the host country of the project, and that the project may on its initiative pay the registration fee and thereby place a lien on the code that the developer may not remove that code from the project without reimbursing the project.
2. Regarding Mr. Ravicher's statement:
"Generally, it isn't advisable to go off half-cocked and make public accusations without having first fully investigated the matter. Doing this can subject the accuser to severe liability on his own part."
I agree with the potential of liability in principle. However, even considering the decision in Diebold v. OPG (judgment against Diebold for false accusation of infringement, with assessment of damages), I do not have great faith in getting judgment recognizing that liability.
3. About Mr. Mutkowski's statements regarding Microsoft's detailed investigations of "outside code," there may be circumstances in which this is called for. However, considering his employer's attitude toward open-source software in general and GPLd programs in particular, I think this has to be taken with a grain of salt, in addition to a good look at the needle on the FUD-o-meter.
4. Regarding another statement by Mr. Ravicher:
"People should not assume hiring a lawyer is cost-prohibitive, as many lawyers are wiling to consider representation of free software clients either pro bono, on contingency, or at a reduced rate."
I believe Mr. Ravicher may be somewhat optimistic in this outlook, especially with respect to pro bono representation. Pro bono or contingency representation is most likely when the case for or against one party is quite clear and easily established by competent counsel. Unfortunately, IP litigation often involves matters that are anything but clear and easily established. Even reduced-rate representation can pile up large sums in protracted cases. It is worth trying to obtain counsel, but it may be a difficult search.
5. "'The point of saying this is that there isn't a bright line test for copyright infringement,' Ravicher said."
Some might say that it's like looking for a black line in the dark.
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Re:Another good source of advice
Posted by: Anonymous Coward on November 21, 2004 01:31 PM1. Mr. Ravicher is correct that having a single copyright holder makes enforcement easier. However, developers may not want to surrender their copyrights in their work.
a. After all, it's theirs. Surrender the copyrights and it's not.
b. If all developers surrender their copyrights to a single entity, that entity could take the entire project private (remember CDDB/Gracenote?). Even if the surrender agreement has a provision prohibiting or restricting this, I would not want to be a developer involved in litigation to enforce it. I think both the outcome and remedy are far from assured.
c. An alternative might be an agreement that a developer who commits code to a project agrees that the project will act as the exclusive representative of all those who hold copyright on code in the project for enforcement of the license provisions of the project and the related interests of the copyright holders. The agreement could also provide that the copyright holder register that copyright with the national registration authority of the holder or the host country of the project, and that the project may on its initiative pay the registration fee and thereby place a lien on the code that the developer may not remove that code from the project without reimbursing the project.
2. Regarding Mr. Ravicher's statement:
"Generally, it isn't advisable to go off half-cocked and make public accusations without having first fully investigated the matter. Doing this can subject the accuser to severe liability on his own part."
I agree with the potential of liability in principle. However, even considering the decision in Diebold v. OPG (judgment against Diebold for false accusation of infringement, with assessment of damages), I do not have great faith in getting judgment recognizing that liability.
3. About Mr. Mutkowski's statements regarding Microsoft's detailed investigations of "outside code," there may be circumstances in which this is called for. However, considering his employer's attitude toward open-source software in general and GPLd programs in particular, I think this has to be taken with a grain of salt, in addition to a good look at the needle on the FUD-o-meter.
4. Regarding another statement by Mr. Ravicher:
"People should not assume hiring a lawyer is cost-prohibitive, as many lawyers are wiling to consider representation of free software clients either pro bono, on contingency, or at a reduced rate."
I believe Mr. Ravicher may be somewhat optimistic in this outlook, especially with respect to pro bono representation. Pro bono or contingency representation is most likely when the case for or against one party is quite clear and easily established by competent counsel. Unfortunately, IP litigation often involves matters that are anything but clear and easily established. Even reduced-rate representation can pile up large sums in protracted cases. It is worth trying to obtain counsel, but it may be a difficult search.
5. "'The point of saying this is that there isn't a bright line test for copyright infringement,' Ravicher said."
Some might say that it's like looking for a black line in the dark.
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