A friend just asked me a question about copyright and terms-and-conditions when using a product and it's quite interesting.

I have a website where I host software projects, and include a license with every release of my software. What happens, if say someone downloads my software, removes all my licenses, and reuploads it in their own domain. Sure, I can send them notices to remove it, but lets say someone downloads it from their site and then uses it in a commercial product, or in a way sanctioned by the license.

Does this third-person then suffer in some way as the source they obtain it from was illegal or do they immediately have to abide by the real terms and conditions if contacted by the owner of the software?

  • 3
    Technically, the third person is infringing, but it's not considered a wilful infringement. The original holder can still pursue damages, but they may only pursue actual damages, not punitive ones.
    – Zizouz212
    Jul 17 '17 at 4:07
  • Of course once you tell them they are infringing then they are wilfully infringing from the point onwards.
    – gnasher729
    Jul 17 '17 at 8:54
  • 1
    @gnasher729 but what if you tell them and they don't believe you? If they still honestly, but mistakenly (and maybe a bit stubbornly) still believe that they obtained the software lawfully from the other site, is their infringement willful? Is there a specific burden of proof you have to bear to them (e.g. just saying "Oh hai, yr softwarez r teh infringementz, i r realz owner!!11!1one omg j00 can has my eula??") would not be good enough. Jul 21 '17 at 15:00
  • @RobertColumbia Except you wouldn't say it like that. Haha. If you we're serious about suing, I guess you will include a copy of a statement in which the distributor has been sued over to prove to them that yes, the person you got this from also stole it from me.
    – user12759
    Jul 23 '17 at 7:01

The law will vary by jurisdiction.

For example, under Australia's Copyright Act 1968, section 115(3) provides:

Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.

"An account of profits" means that the infringer has to pay to the copyright owner the profits that it has made on the infringing work.

  • Thankyou! I live in Australia so this is right up my way. Another thing just quickly, what if the accidental infringer receives notice to stop, and continues not to. Is there a regulation as to how long they have to respond to this, or is it an instantaneous decision of infringement?
    – user12759
    Jul 17 '17 at 4:32
  • @finnrayment if they become aware that they are infringing and continue to do so (after a reasonable time) then they do not get the benefit of this clause.
    – Dale M
    Jul 17 '17 at 4:33
  • Ahhh. Fair enough. This has been an eye-opener.
    – user12759
    Jul 17 '17 at 4:35
  • So if my software is on sale for $1,000 to anybody, and the crook A claims it's theirs and sells it to B, and B made $10,000 profit by using my software, then B would owe me $10,000? Or up to $10,000? In any case, not just the $1,000 that B could have bought a legitimate license for?
    – gnasher729
    Jul 17 '17 at 22:56
  • And can B sue A for damages?
    – gnasher729
    Jul 17 '17 at 22:57

Let's use an example, with software licensed under the GPL. The GPL forces any software that uses that library to also be licensed under the GPL, while allowing anyone who obtains a copy to also obtain its source code and have the right to modify and re-distribute that code.

So, imagine I create a library that is licensed under the GPL. Person A comes and takes it and sells it under their own license, and makes money. Person B obtains a copy of the library from Person A.

Now, my action against Person A is clear. I can sue and fight for the following damages:

  • Actual Damages - any damages that I received as a direct result from Person A's actions.
  • Punitive Damages - any damages that are incurred due to the wilful act itself, to punish Person A, and to deter anybody else from doing something similar.

Now, Person B didn't mean to infringe on my copyright, did he? So I can sue only for the actual damages that I incurred, but I can't seek punitive damages because there was no wilful action here.

  • Now what if person B continues to use the software, after a warning has been notified? Does that become a deliberate infringement? If so, is there a typical window of time that the order has to be allowed to be considered?
    – user12759
    Jul 17 '17 at 4:31
  • @finnrayment Yep, it would. Not completely sure about the time window, but I suspect it would follow the same timeframe as other infringement notices.
    – Zizouz212
    Jul 17 '17 at 4:52
  • Actually, if you used the GPL license, then you cannot sue B as long as they conform to the GPL license. Because that's what the GPL license says. The software is GPL licensed, no matter how B received it. But this is specific to the GPL license, other licenses would be different. Most commercial licenses would be different.
    – gnasher729
    Jul 17 '17 at 8:57
  • @gnasher729 Yes. Infact I created my own license to benefit my own requirements. Basically, use it as long as you like as long as it includes reference to me, (the creator) and you do not sell it for profit unless it is included in a major work as a requirement for the work to correctly function. (in this case, software libraries)
    – user12759
    Jul 17 '17 at 9:22
  • there's a 200$ punitive damage for innocent infringement.
    – Trish
    Sep 6 '20 at 8:00

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