5 ms·
> There are next to zero examples of small companies successfully enforcing their software copyright. Not so. Consider: If it did happen, would you hear about
by kemitchell 5y ago
> There are next to zero examples of small companies successfully enforcing their software copyright.
Not so. Consider: If it did happen, would you hear about it? Consider also: Why do huge, multinational companies invest so much in open license compliance programs and program offices?
I have personally helped small companies and even solo developers enforce license terms for their software. And I have seen plenty of instances of developers doing so without paid lawyer help. I have also helped small companies and solo developers sell commercial licenses for projects under copyleft, noncommercial, and other licenses meaningfully limiting permissions. Those customers have the source code. If they could simply flaunt the rules, there'd be little cause to pay for exceptions.
Why aren't these stories all over my blog? Because I can't run around blurting client confidential information. California Business and Professions Code 6068: "It is the duty of an attorney to do all of the following: ... (e)(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."
There are exceptions. Sometimes at least the first part of the process happens in public, as when a company gets called out by a dev on Twitter. Those tweets are out there. And they can work when the developer's primary leverage is public relations. That tends to be true against violators that sell or hire among developers.
There are also takedown requests under the Digital Millennium Copyright Act. Sometimes, getting a company's repository, web app, or other online presence taken down for copyright infringement is all the leverage a developer needs to make a violator stop, or even kick off a settlement conversation. And DMCA notices are definitely something devs can submit themselves. I have represented clients on the receiving ends of many such requests, some of which also involved social media name-and-shame campaigns.
When settlements do get reached between private parties on license violations, they're almost always confidential, or neither side has any incentive to be loud. The activist organizations doing enforcement, like SFC, tend to see the press releases announcing settlements as big parts of the payoff for enforcement. But they are the exception, not the rule. Search around the Web for "settlement agreement form". I'd bet nearly every one you find has a built in "confidentiality" or "nondisclosure" part built in.
- notyourday 5y agoIt costs too much money to enforce, takes too much time and payout is very small even if you win ( you won't -- you will probably settle for a fraction after wasting years of your time and hundreds of thousands of dollars ) Source: a friendly customer is an attorney specializing in just that.
- kemitchell 5y agoI do this open-related law thing for a living. I know fellow specialists, and there aren't that many of us. I'm not aware of any colleague in private practice specializing in open software license enforcement as such. Even staff attorneys at open source foundations that enforce split their time across advisory, compliance, and other matters. And those foundations don't do so many enforcement claims anyway, in absolute terms. If you know an exception, that's great, please connect me. kyle@kemitchell.com. If they're actually specialized in high-stakes copyright litigation among firms with legal budgets in the millions, there's no need. I know those folks. I wouldn't refer small or solo firms at their rates. I'd suggest they may not be adequately adjusting for scale. Nobody sees the whole industry. As for the view from my own two eyes, I have absolutely billed solo-developer clients for work on settlements and license deals following license violations who were happy to pay and came away with a nice profit. I have also seen developers drive lucrative deals pointing out violations of license terms without any attorney assistance at all.
- notyourday 5y agoYes, it works for an attorney. It does not work for a solo developer/small developers that hire the attorney.
- anaisbetts 5y agoAre you seriously explaining litigation costs to a quite well-known attorney working in this space?
- notyourday 5y ago