[Gllug] Query on PD software licencing

[John Winters]

On Fri, 2005-04-08 at 23:10 +0100, John Southern wrote:
> I have an Off Topic licencing problem.
> 
> A small computer user group I have dealings with has potentially made a big 
> mistake.
> They have a library of software on CD.
> The CD has been sold for many years at £10
> One member has some programs on this CD and they include a copyright line that 
> says "THE LEGAL BIT   xxxxxx is freeware and may be freely copied and 
> distributed provided no financial gain is made, although recognised PD 
> libraries may charge a small copying fee."
> 
> The member has found out that the user group was charge £3 for the discs to be 
> made back in 2000. The member is seeking damages.
> 
> Is there a limit on damages? I think a grand total of about 10 copies were 
> sold over the years.
> 
> From what I can make out, under the Copyright Act,  the penalties for 
> infringement, except for the most serious cases, are payment of damages and 
> costs - in other words, it is a civil offence rather than a criminal one. The 
> damages are the actual financial damages caused the copyright owner.
> 
> So the problem is, can the member seek all the assets of the user group?
> Is the onus on him to prove financial loss?
> What is to stop anyone from taking freeware stuff and selling it as their own 
> against the authors wishes?

IANAL, but...

The thing about "damages" is they are exactly that - damages.  He has to
demonstrate what damage he has suffered by your group's actions.

The term "freeware" has no legal meaning so the only interesting bit in
the licence is the "may be freely copied and distributed provided no
financial gain is made, although recognised PD libraries may charge a
small copying fee" bit.

The way it is phrased it appears that the "may charge a small copying
fee" is an *exception* to the "no financial gain" part, so you then end
up arguing about whether 10 GBP is "small".  Given the volumes involved
you could make a very good case that it is.

In summary, it's an incredibly badly written licence which has holes all
over it.  It was careless of the group not to get the licence clarified
before distributing it.  It is silly of him to try to base a legal claim
on it.

If I were in your position, I'd try to get the guy to stop being silly.
Offer to remove the software from the CD if he doesn't want it there.
If he insists on taking matters further then consult a lawyer and get
said lawyer to write to him pointing out how silly he's being and how
much it will cost him (many hundreds of pounds) for how little potential
gain (could be as little as 1p).

How long has he been aware that his software is on the CD?  What has he
done in the past to indicate he's not happy about it?  How did it get on
the CD?  Did he provide it for that explicit purpose?  If you've been
distributing the stuff with his tacit approval his case is even weaker.

Talking sensibly amongst yourselves is always preferable to getting the
lawyers in.  If he's hoping to make a fast buck, point out that it
simply isn't going to happen.

HTH
John

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