On the efficacy of coyright trolls & testing copyleft in the Courts

Posted Jul 21, 2016 3:44 UTC (Thu) by bkuhn (subscriber, #58642)
Parent article: On the boundaries of GPL enforcement

I think this article quite fairly explains the various sides of the issue. I obviously disagree with some parts of it, but I'm a known partisan on this issue, so that's no surprise. :)

The only part I'm inclined to comment on in detail is that I don't think there is any ongoing risk of successful “GPL copyright trolls”. One of the reasons Karen and I wrote Conservancy's blog post is to create an easily net-findable article for newcomer violators, who perpetrated (easily resolvable) infractions of the GPL and have been approached by a “would-be GPL copyright troll”. In my experience, which I've verified by talking to a lot of company representatives, the trolling behavior only works when the violators targeted can't easily find accurate information about the GPL and how to repair violations quickly.

Furthermore, so-called “GPL copyright trolling” only works against companies that fail to come into compliance. Even under GPLv2, German lawyers don't consider termination permanent. In the USA, where consensus is that termination is permanent, judges are unlikely to award huge damages for past violations that only exist due to termination (i.e., if compliance is almost achieved such that only GPLv2§4 remains violated due to past violations). GPL enforcement experts like myself generally believe that you can expect to get your costs back of enforcing the GPL, but huge monetary awards beyond that are really unlikely. (Conservancy's litigation experience has also confirmed that hypothesis.) Any early successes of troll-like behavior is thus short-lived and evaporates as soon as new Linux adopters learn to adapt quickly with compliant behaviors.

Meanwhile, I think the big idea that Jake hints is absolutely correct: GPL as a strategy is at a complicated crossroads. We have a lot of work to do to adjudicate copyleft and verify that the strategy works. Linux has become GPL's ultimate test case. That's because — and even as an old-school GNU fan, I will admit this — Linux is the most important, useful and interesting GPL'd codebase ever created. Thus, it's no surprise that Linux became GPL's true testing ground.

Finally, while discussions about GPL and its derivative/combined works requirements are basically “old hat” to our community, the discussion is completely new to the Courts. We'll have to bring the question to a lot of Courts in a lot of different ways to get clarity. But, once we do that, then we'll know, and everyone can proceed with more certainty.