Mon, 20 Jun 2005

Open Source Copyright Infringement.

I'm not a lawyer, but I've talked to enough lawyers that this posting will be more correct than incorrect. If one of the Open Source Initiative's lawyers was to read this, I don't think they would blush. Naturally, you're a fool if you rely on an amateur for legal advice, but I plan to give no legal advice here. The US Copyright Office's section on copyright infringement may be a useful reference here.

Copyright enforcement, at least in the USA, is sometimes a civil offense, and sometimes a criminal offense. If you violate copyright in a particularly egregious way, it can be a crime and the police will come after you. Shipping 100,000 DVDs of Star Wars Episode III (obviously not legally on DVD yet) to New York City to be sold by street vendors is clearly criminal copyright violation, and the police would arrest them.

I've never heard of any criminal copyright violation of an open source program. More often, it is a civil offense. The government doesn't get involved in civil offenses. Citizens have to prosecute civil offenses themselves. So typically the copyright holder will initiate a lawsuit against the copyright violator.

But! The last thing you ever want to do is go to court. It's messy, it's expensive, and emotionally unsatisfying. Fortunately, in the open source world, copyright infringement is its own punishment. Let me explain. Open Source is not about the Source code. That's why "Free Software" is a truly inadequate term. It's really about being Open. It's really about the relationship between the users, developers, and vendors of the code.

If you're violating a copyright, then you're actively harming your relationship with other users, developers, and vendors of code. If you want to avoid the legal penalties that go with copyright infringement, you cannot be seen to have infringed the copyright. All of your efforts have to be secret. You can't explain what you're doing; you can't ask for help; you can't hire any outside developers; you can't ask for feature enhancements. It's clearly not worth jeopardizing this relationship for the scant benefit of not complying with an open source license.

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