Determining Damages

Determining Damages

Posted Dec 4, 2003 17:11 UTC (Thu) by HalfMoon (guest, #3211)
In reply to: Examining an attack on the GPL by vgough
Parent article: Examining an attack on the GPL

How are damages determined?

I'll assume you don't mean punitive damages, but just ones based on some rational economic basis.

One ceiling would be all the revenue associated with the product which was doing the copyright infringement. That'd need to be fair math, not the kind RIAA companies use with musicians, so if the product integrates hardware and software, the hardware portion of the revenue WOULD be counted.

Another ceiling would be the engineering effort needed to re-invent, re-implement, re-stabilize the relevant code. Clean-room. That could easily be much more than the revenue from the particular infringing product ...

Whatever number is used would be modified in at least two ways. One would be reducing the number; it may be hard to argue that all the revenue came from unfair competition based on copyright infringement. Another would be increasing it, as in "treble damages" for certain kinds of behavior or as in accounting for some market position acquired by fraud. (OK, that last may expect too much real "justice" out of most of today's "justice systems", sorry!)

IANAL, but I certainly know that these numbers can be arrived at in ways that an unbiased third party would agree reflect the "value" of the infringement to the party doing the infringing.

Remember, if the original author had wanted nothing back, they'd have used the BSD license. But that's not what they wanted ... they chose a license which limited the scope for proprietary value-add. So clearly, every dollar (or euro, etc) associated with that product which wasn't proprietary value-add, or a going-rate service, came from the infringement. There's a damage valuation.

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