penalty vs liability [LWN.net]

penalty vs liability

Posted Jan 15, 2012 19:19 UTC (Sun) by giraffedata (subscriber, #1954)
In reply to: I think we agree more then differ... by khim
Parent article: The Nook Tablet and the GPL

We may very well agree more than differ; that may be because you're using the wrong words for things. Two people can't expect reach a meeting of the minds if they aren't using the same language.

But even in this case lawyers fees will not be returned - and this will be your punishment in such a case.

That's not a punishment - not the way the word is commonly understood. It's no more a punishment than your upholstery getting wet when it rains is punishment for being negligent and leaving your windows down. It's just an unfortunate loss. A punishment is something whose purpose is to hurt. The purpose of the lawsuit is to get a debt paid, not to hurt the person who owed the debt.

Legislators (and courts) do not make laws allocating liability in the hopes that they will generate high legal costs and thereby mold people's behavior.

I agree behavior is governed by enforcement realities as much as by the liabilities being enforced, but they still ought to be discussed separately. I mentioned that "you should fix your sidewalk or you could be sued" demonstrates a misbelief that the lawsuit creates the liability. Even in the case of the soulless corporation, that would be a misstatement; it would be like saying to the CEO, "we should not rent this building; we would be sued for $10,000 a month (the rent)." Yeah, maybe the only reason for a corporation to pay its rent is the threat of lawsuit, but we still recognize the difference between the liability and the suit.

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