Subject: Re: innocent infringers
From: Scott Goehring <>
Date: Fri, 01 May 1998 13:00:42 -0500

"Jonathan" == Jonathan S Shapiro <> writes:

Jonathan> 1. In most circumstances, the "innocence" of the infringer
Jonathan> is simply not relevant.  You copy, you infringe.  It's that
Jonathan> simple.  The question is whether you are liable for damages.

In US law, a copyright owner cannot generally sustain a suit for
copyright infringement against a party who reasonably believed that
the works alleged to be infringed were not subject to copyright or who
reasonably believed that they possessed a valid license which would
have allowed the copying alleged to be infringing.  Federal practice
also generally requires the defendant to have been put on "actual
notice" of the copyright and its license terms.  Constructive notice
is not sufficient to proceed with suit.  The courts will generally
dismiss any action (for "failure to exhaust other available remedies")
brought where the plaintiff has not first issued a cease and desist
order to the defendant.

Jonathan> 2. The BSD copyright makes no provision for how you accept
Jonathan> patches, so "accepting changes with the permissions of a BSD
Jonathan> license" is irrelevant.

Jonathan> 3. There is in fact no BSD license, only a copyright.

Copyright is inherent and, since 1986, need not even be claimed.  The
BSD copyright notice, last I checked, constitutes a license.  (I'd
have to see a copy to be certain, though.)  Calling the file COPYRIGHT
in no way diminishes its contents status as a license.  Also note that
since noncontractual licenses (like the GPL and BSD/Artistic) are
strictly permissive, they are valid regardless of whether licensees
are aware of them.  (Keep in mind that in the absence of a license,
your right to make copies is limited only to those rights established
by statute, and a noncontractual license cannot contract statutory
rights.)  Of course, if you are not aware of a license, you should
reasonably believe that you have no right to copy at all (except for
statutory rights); but in practice there are many cases where implied
licenses exist.

Jonathan> 4. If you had reason to think that the changes *might* be
Jonathan> subject to copyright, you are no longer an innocent
Jonathan> infringer.  Having asked the question publicly, you cannot
Jonathan> claim innocence after today.

I wouldn't jump to that conclusion.  If, for example, the results of
asking that question reinforce a reasonable belief of right to copy,
the innocent infringement defense remains valid.  And, as I stated
above, the courts will generally dismiss without a C&D.

Jonathan> 5. As a mass copier, under this set of circumstances, an
Jonathan> extremist might hold you up for damages.  Regardless of what
Jonathan> the law says, they might win in court.

That's always a risk, but I suspect in this case a minor one.

Jonathan> 1. Sufficiently small deltas are not copyrightable.

I have wondered for some time how small bug repairs interact with
Section 107, and whether a tiny bug patch either lacks sufficient
creative effort to constitute a "work".  I don't believe that this
question, or anything similar, has been adjudicated.  In general, the
status of large collaborative works where not all collaborators are
employees of the statutory author is a relative unknown.

Jonathan> 2. You can argue that the clear intent of the contributor
Jonathan> was to contribute, and that they had both knowledge and
Jonathan> reasonable expectation that you would reuse in this way.
Jonathan> This amounts to an implicit grant of rights.

Implicit grant of license.  Be careful with the language.  In the
United Statesa grant (transfer) of rights must be executed in writing;
in the United Kingdom, an actual contract (with all that entails) is