In article <[EMAIL PROTECTED]>, David Kastrup <[EMAIL PROTECTED]> wrote: > > What would actual damages be? Typically, this is the profits you > > didn't make, because people bought from the infringer instead of from > > you. But when you make your product available for free, you don't > > really have lost profits. > > But we are not talking about "making a product available for free", but > "making it available under the conditions of the GPL", whether for free > or not. If the perpetrator could have made use of the software under > those conditions, he would not have to violate the license. So we are > talking about a _different_ use then the one that is being licensed > under the GPL. A product that has _not_ been made available for $0. If > the author has not yet made this product available (namely a licensing > under conditions the perpetrator would have used), then he is, of > course, free to name the price he would take for said product. Or
That's not going to fly. It's too remote. To determine damages under that model, the court has to figure out what P and D would have agreed to if P had been willing to sell, and D to buy, a special license to the work. That's just too speculative, unless P has already sold such licenses to others, so there is some basis for settling on a likely price. What the court wants to do is put P in the position P would have been in if the infringement had not occurred. There are two ways to do that. The one you are suggesting is for the court to speculate what would have happened if the D had hypothetically purchased a license to do what D actually did. The other way, which is the one I believe courts usually go with, is for the court to ask what would have happened if D had obeyed the actual license that D had. That requires much less speculation. Under that analysis, P expected to make $0 off of D's use of the software, so I don't think it is likely the court would award much more than that. -- --Tim Smith _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
