5 ms·

I'm definitely not a lawyer/expert on this, even less about Germany specifically, but isn't actual financial damage required for financial compensation? While S

I'm definitely not a lawyer/expert on this, even less about Germany specifically, but isn't actual financial damage required for financial compensation? While Stockfish might have suffered damage from ChessBase's behavior, if it can't be clearly specified as monetary damage, I don't really see how they could make money from this. On the other hand, if ChessBase is found (and ruled) to have distributed software illegally, the company and its executives might have another problem. I don't know the specifics of German law, but I believe that distributing software (or any product) illegally is actually a criminal offense (no longer a civil dispute). That could (theoretically/eventually) lead to criminal prosecution and who knows .. jail time?

jeremyjh 5y ago
Step 1. Hire an expensive attorney. Step 2. Sue to recover attorney fees.
- germanier 5y ago
  In German court proceedings you can only recover attorney fees up to the (pretty low) legal fee schedule (RVG). Anything above that you will have to pay yourselves
  - mananaysiempre 5y ago
    GP’s joke, I suspect, was that in practice every bit of money they get from the lawsuit, whether it is labeled “attorney fees” or not, is likely to go towards compensating the legal team, and not to the actual injured party. Which does not contradict your statement. (Part of the point of having a legal fee schedule is, I suppose, to put a damper on the prices of legal help, because, like in medicine, the demand is otherwise extremely inelastic: when you need it, you really need it. That does not appear to work. I wonder if there is an approach that would work.)
    - groby_b 5y ago
      The German legal system does put somewhat of a damper on "every bit of money". First, it can only be charged as attorney fees, and if it exceeds the legal schedule, it needs to be very clearly called out as an attorney fee agreement. So "or not" is off the table. Secondly, there is a morality clause with regards to attorney fees, so usurious rates like some US attorneys charge are harder to achieve. This doesn't mean German attorneys are cheap. It's just not quite as out of control as the US legal system. (Though attorney's professional bodies are obviously lobbying to make it easier to charge more) The legal fee schedule does put a damper on attorney work, and more importantly, makes it somewhat easier to predict costs should you need an attorney. If it's enough of a damper is open to interpretation. I
    - mmcdermott 5y ago
      The short answer would be to make legal representation less valuable. Ensure that all cases (civil, criminal or otherwise) are tried and concluded quickly including appeals and streamline the law so that there is a lot less maneuverability. Lawyers wouldn't vanish (having someone knowledgeable and with proper negotiating distance will always be valuable), but they would lose a lot of leverage. Of course, if there's one thing that lawyers are less likely to do than cap the earnings of their profession, it's to devalue it entirely. You could also increase supply by reducing the level of qualification needed to become a lawyer. Increased competition would drive prices down. That too is highly unlikely.
    - thaumasiotes 5y ago
      I think the joke is just that awarding "attorney fees" sets up a perverse incentive, much like "cost plus" pricing agreements. It's a bad idea.
    - cycomanic 5y ago
      Note that Germany generally has a loser pays system (there are some caveats), so this will definitely not be true, because they can recover the legal costs from Chessbase.
      - Xylakant 5y ago
- mjthompson 5y ago
  Costs are compensatory in nature, not punitive. This is a risky gambit, pardon the pun. Also, in Australia, you'll only recover a portion in accordance with scale limits (party-party costs). Indemnity costs (100% recovery) is rarely awarded. What's the case in the US?
adrianba 5y ago
I don't know about German law specifically, but damages can be shown in a variety of ways. In the US, courts have recognized publishers of open-source software as receiving value from having made source code available at no charge, such as reputational gain or adoption leading to future sales of related products or services.
- chippiewill 5y ago
  Additionally the possibility to relicense the software to the offender under commercial terms and gain direct monetary value. Presumably it's important to establish damages (at least in a US jurisdiction) because otherwise they wouldn't have standing to bring a lawsuit.
freejazz 5y ago
In the US, copyright litigants can be entitled to attorney's fees and costs
pabs3 5y ago
I would suggest that they could ask for an injunction as well as restitutionary/disgorgement damages (give back their ill-gotten gains) and possibly punitive damages (to discourage others from violating the GPL). https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-compensatory) https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-...
gpm 5y ago
Not a lawyer, but I think there's a weak argument for actual financial damages here. There was only one legal way for ChessBase to do what it did (rebrand stockfish without attribution), and that was to acquire a (non-gpl) license from all the stockfish developers. That was almost certainly possible, for enough money. Stockfish developers could arguably sue for those lost licensing fees.
lmm 5y ago
> I'm definitely not a lawyer/expert on this, even less about Germany specifically, but isn't actual financial damage required for financial compensation? While Stockfish might have suffered damage from ChessBase's behavior, if it can't be clearly specified as monetary damage, I don't really see how they could make money from this. In the US there are statutory damages for copyright infringement ($50k per act of infringement, tripled if wilful) so you're entitled to that much without having to prove any actual damages.

jeremyjh 5y ago

Step 1. Hire an expensive attorney. Step 2. Sue to recover attorney fees.

germanier 5y ago
In German court proceedings you can only recover attorney fees up to the (pretty low) legal fee schedule (RVG). Anything above that you will have to pay yourselves
- mananaysiempre 5y ago
  GP’s joke, I suspect, was that in practice every bit of money they get from the lawsuit, whether it is labeled “attorney fees” or not, is likely to go towards compensating the legal team, and not to the actual injured party. Which does not contradict your statement. (Part of the point of having a legal fee schedule is, I suppose, to put a damper on the prices of legal help, because, like in medicine, the demand is otherwise extremely inelastic: when you need it, you really need it. That does not appear to work. I wonder if there is an approach that would work.)
  - groby_b 5y ago
    The German legal system does put somewhat of a damper on "every bit of money". First, it can only be charged as attorney fees, and if it exceeds the legal schedule, it needs to be very clearly called out as an attorney fee agreement. So "or not" is off the table. Secondly, there is a morality clause with regards to attorney fees, so usurious rates like some US attorneys charge are harder to achieve. This doesn't mean German attorneys are cheap. It's just not quite as out of control as the US legal system. (Though attorney's professional bodies are obviously lobbying to make it easier to charge more) The legal fee schedule does put a damper on attorney work, and more importantly, makes it somewhat easier to predict costs should you need an attorney. If it's enough of a damper is open to interpretation. I
  - mmcdermott 5y ago
    The short answer would be to make legal representation less valuable. Ensure that all cases (civil, criminal or otherwise) are tried and concluded quickly including appeals and streamline the law so that there is a lot less maneuverability. Lawyers wouldn't vanish (having someone knowledgeable and with proper negotiating distance will always be valuable), but they would lose a lot of leverage. Of course, if there's one thing that lawyers are less likely to do than cap the earnings of their profession, it's to devalue it entirely. You could also increase supply by reducing the level of qualification needed to become a lawyer. Increased competition would drive prices down. That too is highly unlikely.
  - thaumasiotes 5y ago
    I think the joke is just that awarding "attorney fees" sets up a perverse incentive, much like "cost plus" pricing agreements. It's a bad idea.
  - cycomanic 5y ago
    Note that Germany generally has a loser pays system (there are some caveats), so this will definitely not be true, because they can recover the legal costs from Chessbase.
    - Xylakant 5y ago
mjthompson 5y ago
Costs are compensatory in nature, not punitive. This is a risky gambit, pardon the pun. Also, in Australia, you'll only recover a portion in accordance with scale limits (party-party costs). Indemnity costs (100% recovery) is rarely awarded. What's the case in the US?

adrianba 5y ago

I don't know about German law specifically, but damages can be shown in a variety of ways. In the US, courts have recognized publishers of open-source software as receiving value from having made source code available at no charge, such as reputational gain or adoption leading to future sales of related products or services.

chippiewill 5y ago
Additionally the possibility to relicense the software to the offender under commercial terms and gain direct monetary value. Presumably it's important to establish damages (at least in a US jurisdiction) because otherwise they wouldn't have standing to bring a lawsuit.

freejazz 5y ago

In the US, copyright litigants can be entitled to attorney's fees and costs

pabs3 5y ago

I would suggest that they could ask for an injunction as well as restitutionary/disgorgement damages (give back their ill-gotten gains) and possibly punitive damages (to discourage others from violating the GPL). https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-compensatory) https://en.wikipedia.org/wiki/Damages#Punitive_damages_(non-...

gpm 5y ago

Not a lawyer, but I think there's a weak argument for actual financial damages here. There was only one legal way for ChessBase to do what it did (rebrand stockfish without attribution), and that was to acquire a (non-gpl) license from all the stockfish developers. That was almost certainly possible, for enough money. Stockfish developers could arguably sue for those lost licensing fees.

lmm 5y ago

> I'm definitely not a lawyer/expert on this, even less about Germany specifically, but isn't actual financial damage required for financial compensation? While Stockfish might have suffered damage from ChessBase's behavior, if it can't be clearly specified as monetary damage, I don't really see how they could make money from this. In the US there are statutory damages for copyright infringement ($50k per act of infringement, tripled if wilful) so you're entitled to that much without having to prove any actual damages.