Subject: Re: Why software patents are bad
Date: 18 Sep 1999 12:37:47 -0000

>Neither.  It's that copyright is an ex post law.  You can't recover
>from the damages (you can't go to all the people to whom the work has
>been copies and get it back), so you have to be paid for the damages
>by the infringer.  What are the damages from someone taking free
>software proprietary?  We're not talking theoretical damages, we're
>talking actual damages.  Lost income.

Okay.  BTW, this has been discussed on gnu.misc.discuss for ages,
and, indeed, it's not clear.  My hope is the courts will recognize
the concept of both compensatory and punitive damages being awarded
not just to the *plaintiff* but to the *community* the OS license
was designed to benefit, and which was damaged by the infringement.

In other words, the courts should consider *compensating* by at
least forcing all proprietary code intertwined with OS code to
be released as comparably-licensed OS code (GPL, BSD, X, AL, whatever),
as well as paying triple legal and lost-income costs to the plaintiffs.

As for *punitive* damages, ruling that even more or all of the
defendant's *other* software be immediately released under an OS license,
perhaps requiring that of the defendant for all new software written
for the next N years, might be sufficient to serve the kind of "notice
to others of serious penalties for bad behavior" that assigning
large monetary damages usually is expected to accomplish.

(No, I'm not all that hopeful that a court would do any of these

        tq vm, (burley)