[License-discuss] Licenses for commercial products

McCoy Smith mccoy at lexpan.law
Tue May 5 14:37:37 UTC 2020

> -----Original Message-----
> From: License-discuss <license-discuss-bounces at lists.opensource.org> On
> Behalf Of Langley, Stuart
> Sent: Monday, May 4, 2020 3:30 PM
> To: license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Licenses for commercial products
> >> No, they can't just strip off the copyright and add their own.
> >> That is intentional copyright infringement, and you can sue for
> >> treble damages (as long as your software's copyright is registered).
> >And if it isn't?
> If you have not registered your copyright you can and must do so before you
> sue someone.
The potential for treble damages is for patent infringement (see 35 U.S. Code § 284); copyright infringement willfulness damages has a cap that is calculated differently (see 17 U.S.C. § 504(c)(2))
Note, of course that all of this is only in the USA.  AFAIK, other jurisdictions don't have enhanced damages for willfulness (although my non-USA colleagues can correct me if I'm wrong).
Copyright registration is also a USA-only phenomenon.  We had a mini-session at LLW 2019 about the copyright registration requirement in the USA and the non-USA participants found it quite surprising and hard to understand its rationale.

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