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Meet Bob, the creator of an intellectual work and holder of its copyright.

He perhaps enrobes the software in a clickwrap style agreement which states: pressing continue signifies that you agree that you have purchased a license from the creator allowing you to enjoy this work. Licenses are available for £5 (€5, $5, etc) from example.org.

If you in fact do not have a license and use this product without a license or if you exceed your purchased license then you hereby agree to pay the copyright holder a £10 (€,$,etc) license breach fee.

Does this legally hold any water?

It would seem to me that the act of using a work without license is defined by law (statute or common law) as a tort or a crime or both. And it would be up to the law and courts or both to decide what the penalties for this ought to be whether civil damages or criminal fines paid to the state or custodial sentences etc.

If one wishes to break copyright then one is leaving oneself open to sanction by the state and that will then become a matter that is ultimately between the offender and the state even if it is partially instigated as civil actions by the right holder.

The right holder can set their prices for licenses to use their works as they may like. But how can they redefine the implications of violating the state’s rules that one must have the right holder’s permission to use a work, essentially supplanting the state’s sovereign power to make rules for people and determine their consequences. How can the right holder’s power exceed that to simply grant or withhold their permission for a given person to use the work? Or can it?

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I don't think you can actually define a custom penalty in the sense that law enforcement will go out and collect it for you of their own accord.

But you could absolutely sue for copyright infringement and offer to settle.

You could also offer a license that costs $5 paid in advance, or $10 paid later. It is not clear to me that that license could actually be refused, so you could end up being owed $10 and having the right to invoice for it or sue to collect it.

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