5 ms·

If you do not enforce your copyright, any case in the future will look weak. Elastic has to sue now that they have discovered infringement or the next guy will

If you do not enforce your copyright, any case in the future will look weak. Elastic has to sue now that they have discovered infringement or the next guy will say "they don't care that much, they let search guard get away with it".

otterley 7y ago
Attorney here! (This is not legal advice, consult a licensed attorney in your jurisdiction.) The doctrine of laches, which is probably what you're thinking of, isn't typically available as a defense to copyright infringement suits -- see https://en.wikipedia.org/wiki/Petrella_v._Metro-Goldwyn-Mayer,_Inc. https://en.wikipedia.org/wiki/Petrella_v._Metro-Goldwyn-Maye.... There is, however, a 3-year statute of limitations on such suits.
- henryfjordan 7y ago
  I was trying to be careful with the wording. It's not "use it or lose it" so much as "the code can't be worth much if you let the last guy steal it". Any lawyer in a future case worth their salt would tear Elastic apart in the damages arguments.
  - otterley 7y ago
    Perhaps. But: 1. Much of the relief sought in an infringement suit is the equitable relief (i.e., the injunction), not necessarily monetary damages. 2. If ElasticSearch can prove that Floragunn GmBH committed willful infringement, they can avail themselves of statutory damages of $150,000 per work, or, alternatively, any profits received by Floragunn (and all ElasticSearch has to show is proof of revenues minus expenses). See 17 U.S.C. section 504. 3. The fact that you give free samples away or willfully ignore some infringing behavior is not, in my experience, a conclusive indicator of the overall value of a good or service. (And there is not, to my knowledge, a legal doctrine that says so.) Apple gives all of its Macbook purchasers MacOS for free, yet nobody would seriously claim that a court wouldn't award them millions -- if not billions -- if the source code were misappropriated.
    - henryfjordan 7y ago
      To your third point, I think we're comparing apples and oranges. Apple grants an OSX license to each macbook purchaser. The equivalent example would be Microsoft releasing WinX which is just a straight line-for-line rip-off of OSX and Apple not doing anything about it. Then when someone else starts distributing OSX and gets sued they'd say "Apple already let Microsoft devalue OSX by distributing it". The distribution might have to stop, but Apple's lawyers are going to be fighting an uphill battle for significant damages. The same would be true here for Elastic if they didn't pursue this lawsuit.
      - otterley 7y ago
        I don't have time to do the legal research at the moment, but I haven't seen this argument used successfully in any cases to mitigate damages for a copyright infringement case. It's not like an ordinary tort where the plaintiff has such a duty. Do you have any cases to cite, or are you just guessing?
      - geofft 7y ago
        But in the case of Apple in particular, Apple doesn't go after every infringement. The internets are full of instructions on how to set up a Hackintosh, including how to circumvent the copy protection measure (there's a 64-byte string that's a three-line poem widely available on the internets), but that did not stop them from going after Psystar.
jrochkind1 7y ago
It's just that what you describe has got very little to do with how open source works. So why are they mentioning open source? (As an aside, I'm also not sure that's as much of an issue in enforcing copyright as it is in enforcing trademark, but I'm no lawyer. But: > Copyright is not like trademark. Copyright has a set period of time for which it is valid and, unless you take some kind of action, you do not give up those rights… However, unlike trademarks, which do have to be defended, there is nothing the precludes you from enforcing your copyrights at a later date. https://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/ https://www.plagiarismtoday.com/stopping-internet-plagiarism... But I'm not sure how relevant this really is).
- henryfjordan 7y ago
  It's an issue in enforcing copyright, not trademark. Search guard isn't pretending to be Elastic. They are pretending to have copy rights to the code beyond what the open source license says they have (hence the mention of open source). Edit: I think you changed your comment a bit, but it's not that elastic couldn't let this one slide, it's that doing so would hurt them in the future. Their code can't be worth much if they just let people violate the license left and right.
  - geofft 7y ago
    I think the commenter above was trying to say that the "you have to enforce it every time or future cases are weaker" applies to protecting trademark rights and not copyrights. (They weren't saying this is a trademark case, they were saying that because this isn't a trademark case, trademark rules don't apply.) The "you have to enforce it" thing is about genericized trademarks: I can sell a painkiller under the name "aspirin" because everyone forgot it's a trademark and so there's no argument that there's an intent to cause market confusion with Bayer. But the copious pirated copies of Windows don't let me sell it without licensing it from Microsoft.

otterley 7y ago

Attorney here! (This is not legal advice, consult a licensed attorney in your jurisdiction.) The doctrine of laches, which is probably what you're thinking of, isn't typically available as a defense to copyright infringement suits -- see https://en.wikipedia.org/wiki/Petrella_v._Metro-Goldwyn-Mayer,_Inc. https://en.wikipedia.org/wiki/Petrella_v._Metro-Goldwyn-Maye.... There is, however, a 3-year statute of limitations on such suits.

henryfjordan 7y ago
I was trying to be careful with the wording. It's not "use it or lose it" so much as "the code can't be worth much if you let the last guy steal it". Any lawyer in a future case worth their salt would tear Elastic apart in the damages arguments.
- otterley 7y ago
  Perhaps. But: 1. Much of the relief sought in an infringement suit is the equitable relief (i.e., the injunction), not necessarily monetary damages. 2. If ElasticSearch can prove that Floragunn GmBH committed willful infringement, they can avail themselves of statutory damages of $150,000 per work, or, alternatively, any profits received by Floragunn (and all ElasticSearch has to show is proof of revenues minus expenses). See 17 U.S.C. section 504. 3. The fact that you give free samples away or willfully ignore some infringing behavior is not, in my experience, a conclusive indicator of the overall value of a good or service. (And there is not, to my knowledge, a legal doctrine that says so.) Apple gives all of its Macbook purchasers MacOS for free, yet nobody would seriously claim that a court wouldn't award them millions -- if not billions -- if the source code were misappropriated.
  - henryfjordan 7y ago
    To your third point, I think we're comparing apples and oranges. Apple grants an OSX license to each macbook purchaser. The equivalent example would be Microsoft releasing WinX which is just a straight line-for-line rip-off of OSX and Apple not doing anything about it. Then when someone else starts distributing OSX and gets sued they'd say "Apple already let Microsoft devalue OSX by distributing it". The distribution might have to stop, but Apple's lawyers are going to be fighting an uphill battle for significant damages. The same would be true here for Elastic if they didn't pursue this lawsuit.
    - otterley 7y ago
      I don't have time to do the legal research at the moment, but I haven't seen this argument used successfully in any cases to mitigate damages for a copyright infringement case. It's not like an ordinary tort where the plaintiff has such a duty. Do you have any cases to cite, or are you just guessing?
    - geofft 7y ago
      But in the case of Apple in particular, Apple doesn't go after every infringement. The internets are full of instructions on how to set up a Hackintosh, including how to circumvent the copy protection measure (there's a 64-byte string that's a three-line poem widely available on the internets), but that did not stop them from going after Psystar.

jrochkind1 7y ago

It's just that what you describe has got very little to do with how open source works. So why are they mentioning open source? (As an aside, I'm also not sure that's as much of an issue in enforcing copyright as it is in enforcing trademark, but I'm no lawyer. But: > Copyright is not like trademark. Copyright has a set period of time for which it is valid and, unless you take some kind of action, you do not give up those rights… However, unlike trademarks, which do have to be defended, there is nothing the precludes you from enforcing your copyrights at a later date. https://www.plagiarismtoday.com/stopping-internet-plagiarism/your-copyrights-online/3-copyright-myths/ https://www.plagiarismtoday.com/stopping-internet-plagiarism... But I'm not sure how relevant this really is).

henryfjordan 7y ago
It's an issue in enforcing copyright, not trademark. Search guard isn't pretending to be Elastic. They are pretending to have copy rights to the code beyond what the open source license says they have (hence the mention of open source). Edit: I think you changed your comment a bit, but it's not that elastic couldn't let this one slide, it's that doing so would hurt them in the future. Their code can't be worth much if they just let people violate the license left and right.
- geofft 7y ago
  I think the commenter above was trying to say that the "you have to enforce it every time or future cases are weaker" applies to protecting trademark rights and not copyrights. (They weren't saying this is a trademark case, they were saying that because this isn't a trademark case, trademark rules don't apply.) The "you have to enforce it" thing is about genericized trademarks: I can sell a painkiller under the name "aspirin" because everyone forgot it's a trademark and so there's no argument that there's an intent to cause market confusion with Bayer. But the copious pirated copies of Windows don't let me sell it without licensing it from Microsoft.