David A. Wheeler's Blog

Wed, 22 Apr 2009

Why copyright damage limits don’t hurt FLOSS

There’s a move afoot to argue that copyright infringement penalties should bear a rational relationship to the value of what was infringed. You might think that this could harm Free/Libre/Open Source Software (FLOSS), but I don’t think so. Here’s why.

First: This is all being brought to a head by the current file-sharing lawsuit against Boston University graduate student Joel Tenenbaum, which raises a number of interesting questions. One issue that I find particularly interesting is the issue of statutory damages: Are fines from $750 to $150,000 per song (worth at most $1), non-commercially shared without permission, even legal under the US Constitution? Or, are these fines so excessive that they are unconstitutional? Ars Technical gives a brief summary of the case, if you haven’t been following it. The Free Software Foundation (FSF)’s Amicus Brief in Connection with defendant’s motion to dismiss on grounds of unconstitutionality of copyright act statutory damages as applied to infringement of single MP3 files argues that these penalties grossly exceed the crime; the FSF argues that the “State Farm/Gore due process test applicable to punitive damage awards is likewise applicable to statutory damages, and in particular bars the suggestion that each infringement of an MP3 file having a retail value of 99 cents or less may be punishable by statutory damages of from $750 to $150,000 — or from 2,100 to 425,000 times the actual damages”.

Frankly, I think the FSF and Tenenbaum have a reasonable argument on this point. People who shoplift a CD from a store would definitely pay penalties when caught, but those penalties would bear some relationship to the value of the property stolen, and would be far smaller than a file-sharer. This notion that the “punishment should fit the crime” is certainly not new; Proverbs 6:30-31 talks about thieves paying sevenfold if they are caught. That doesn’t make such actions right - but unjust penalties aren’t right either. I think a lot of the problem is that copyright laws were originally written when only rich people with printing presses could really make and distribute many copies of material. Today, 8-year-olds can distribute as much information as the New York Times, and the law hasn’t caught up.

But does the FSF risk subverting Free/Libre/Open Source Software (FLOSS) by making this argument? After all, FLOSS developers also depend on copyright law to enforce certain conditions, and often charge $0 for copies of their software. If the penalties would be limited to “7 times the original cost”, would that make FLOSS development impossible?

I don’t think there’s any problem, but for some people that may not be obvious. The difference is that in a typical music copyright infringement case, the filesharer could purchase the right to do what they’re doing for a relatively low price, something typically not true for FLOSS. For example, under normal circumstances it’s perfectly legal to buy a song for $1, and then transfer that song to someone else (as long as you destroy your own copies), so sharing that song with 10 people is legal after paying $10.

In contrast, violations of FLOSS licenses often can’t be made legal by simply buying the rights. If you violate the revised BSD license by removing all credits to the original author, there’s typically no “alternative” legal version available for sale without the author credits. (Indeed, under legal systems with strict “moral rights” it may not even be possible.) Similarly, if you violate the GPL by releasing binary software yet refusing to release its source code, there’s often no way to pay additional money to the original authors for that privilege. In some cases, GPL’ed software is released via a dual-use license (e.g., “GPL or proprietary”), with the proprietary version costing additional money; in those cases you do have a value that you can compare against. In cases where there is a value you can compare against, then you should use that value to help determine the penalty. Otherwise, a much stiffer penalty is justified, because there is no method for the infringer to “buy” his or her way out, and their actions risk making functional products (not just entertainment) unsupportable. As noted in the United States Court of Appeals for the Federal Circuit case 2008-1001, JACOBSEN v. KATZER, the court essentially found that failing to obey the conditions of an open source software license led to copyright infringement. (For more on this particular case, see New Open Source Legal Decision: Jacobsen & Katzer and How Model Train Software Will Have an Important Effect on Open Source Licensing.)

So I think that it does make sense to limit copyright penalties based on the value of the original infringed item… but that doing so does not (necessarily) put FLOSS development processes at risk.

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