copyrights .neq. patents [LWN.net]

copyrights .neq. patents

Posted Sep 22, 2006 19:33 UTC (Fri) by stevenj (guest, #421)
In reply to: Another GPL win in Germany by khim
Parent article: Another GPL win in Germany

That's actually very-very-very good thing: this means if someone accidentally infringed you can not wait few years till your "intellectual property" is included in billions of devices around the world (think LZW)

LZW is a bad example because it is a patent, not a copyright issue. You've fallen into the usual trap of the term "intellectual property", which sweeps up so many disparate kinds of law into a deceptive unity.

Unlike patents, copyright infringement must be willful to some degree—you can't include someone else's code in your program without knowing that you are doing so. So, there is no such thing as a copyright that has been "accidentally infringed". (Unless you mean people who "accidentally" don't perform due diligence in checking that they have a proper license to use the code they are incorporating.)

So, I'm not sure I agree that this is such a good feature of German copyright law.

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copyrights .neq. patents

Posted Sep 22, 2006 20:20 UTC (Fri) by farnz (guest, #17727) [Link]

I'm not a lawyer (and not German, either), but I've watched what Harald is doing closely; you're misunderstanding the German law slightly (no surprises, as the parent poster to you is unclear about it too).

The German law takes the view that you should start legal proceedings as soon as you become aware that someone is infringing your copyright. To encourage this, you may only obtain an injunction preventing the infringer from continuing to infringe within a short period of time (30 days IIRC) after you discover the infringement.

However, all an infringer gains is the ability to continue shipping; damages can still be worked out by the court at any date. I'm not clear on the situation with a copyright holder who ignores infringements in the hope of building up damages; I believe that the court may choose to reduce damages in this case, to further encourage plaintiffs to come forward earlier rather than later.

Note that the key date is not that of when the infringement took place, but the date on which the plaintiff first became aware that you were infringing their copyright; thus, if I had been selling Harald's code in Germany for the last 5 years without a suitable licence, making millions of euros in the process, but he only became aware of it today, the clock starts ticking today.

The idea is to protect companies from a plaintiff who deliberately ignores infringements in the hope of increasing damages, while clamping down hard on infringers if the copyright holder complains swiftly. It also gives infringers an incentive to negotiate quickly; because the copyright holder has to take legal action shortly after discovering infringement to get an injunction preventing you from shipping product, you don't get very long to clear things up with them before you're in deep legal doo-doo.

copyrights .neq. patents

Posted Sep 22, 2006 21:06 UTC (Fri) by sepreece (subscriber, #19270) [Link]

Interesting...

If the starting date is when you discover the infringement, how do you prove what that date was?

Note, by the way, that no damages were awarded (as I read the news release), only costs plus an injunction against further shipping. Since the company had already agreed to stop shipping, it sounds like only the costs were at issue. While that is presumably because the project has not sought damages, it would be interesting to see an example of the analysis a court would use in trying figure out damages in a free software case. Are there any existing decisions that carried damages?

copyrights .neq. patents

Posted Sep 23, 2006 7:15 UTC (Sat) by csamuel (✭ supporter ✭, #2624) [Link]

If the starting date is when you discover the infringement, how do you prove what that date was?

I presume that would be from the date that you served notice on them of the infringement.

copyrights .neq. patents

Posted Sep 23, 2006 18:25 UTC (Sat) by sepreece (subscriber, #19270) [Link]

Wouldn't that leave the same opportunity to let the damages build up before serving notice?

copyrights .neq. patents

Posted Sep 24, 2006 12:33 UTC (Sun) by csamuel (✭ supporter ✭, #2624) [Link]

Good point - I need more sleep.. :-)

copyrights .neq. patents

Posted Sep 24, 2006 16:35 UTC (Sun) by jhardin (guest, #3297) [Link]

Only for thirty days. So you can discover infringement and let it sit for a year, but you'll only be able to claim 30 days' damages, and that only by lying to the court about when you discovered the infringement. Do you *really* want to do *that*?

an obligation to mitigate damages is a standard part of common law

Posted Sep 22, 2006 23:44 UTC (Fri) by stevenj (guest, #421) [Link]

I'm not a lawyer either, but even in the US I believe the claimant has an obligation to mitigate damages by acting to stop the offender as soon as possible. This arises in many parts of the law (copyrights, tenant contracts, junk faxes, etc.). See, for example, here:

Mitigation (also known as the doctrine of "avoidable consequences") holds that one cannot, once injured, ignore an opportunity to act so as to stem the continuing increase in damages from that injury, and recover the same from Defendant.

(I seem to recall that this was raised as a possible defense in the SCO case, because SCO refused to mitigate its damages by telling the kernel developers what they needed to remove ASAP. Of course, this was before it became clear that SCO had no evidence at all.)