[fpc-pascal] Notice: Possible copyright infringements in FPC code base

[John Stoneham]

On Jan 16, 2008 3:42 AM, Tiziano De Togni <tizzziano at tiscali.it> wrote:
> Could you please tell me if there is a real chance that CodeGear asks
> money for a concrete copyright violation to someone of the FPC or
> Lazarus developers?
>
> And in this case, how this claim could be performed?

Well, one interesting thing to note is that I do not know of a case
where a small code segment was sufficient to bring a copyright
infringement action, even if that code segment was a couple of hundred
lines long. However, this may be due to two factors: 1) such a
relatively small code segment is fairly easy to re-implement as
original code; and 2) this usually reflects only a very small fraction
of the entire codebase involved.

Point 2 is worth commenting on. This would be the equivalent of a
songwriter using a 4-note phrase from another song. US Copyright law
has recognized the impracticality (and indeed, undesirability) of such
a strict policy if it were to be enforced. The fact that a
several-hundred-thousand line codebase has even a few hundred lines in
common with another work is rather unremarkable from a legal
standpoint. However, that's not to say the plaintiff couldn't bring
such a suit; but filing a suit based on code fragment violations in
software is a fairly new concept, and it's largely been unsuccessful.
More frequently, software "infringement" suits are brought as patent
claims, not copyright, specifically because of the difficulty in
enforcing a copyright claim when only a small segment of code is
alleged to have been copied. (Copyright infringement claims usually
involve the copying of entire works, not tiny segments, and indeed the
Copyright law itself was written with that idea in mind.)

Copyright law is also fairly unique in that it provides for statutory
damages. What this means is that the plaintiff only has to prove that
an infringement occurred, they don't have to prove that they were
actually damaged by that infringement. Usually, in a civil suit the
plaintiff has to prove that they were actually damaged in some way,
and the judgment has to reflect the actual damages incurred. As
opposed to proving actual damages, US copyright law provides the
plaintiff with the option of requesting an award of damages which is
set by the statute itself, which is why this type of award is called
"statutory damages". The range is a fairly large, and it is in the
judge's (or jury's) discretion to set the actual amount, but the award
has to be in the range of $750 to $30,000 per work infringed. One
software program is considered one work, so it wouldn't matter is
there were several instances of copyright infringement involved within
the same program, there would still only be one work infringed upon
and only one award of damages (using FPC as an example, CodeGear
couldn't ask for (say) 30 separate damage awards if 30 units within
the FPC codebase contained infringing code, they could only request
one award of damages since FPC is considered one work). There is a
second, higher tier of damages, if the plaintiff can prove the
infringement was "willful", set at $150,000 per work. However, this is
very hard to prove. "Willful" has a legal meaning in this context, it
doesn't simply mean that the defendant *intended* to infringe upon the
copyright, which is almost always the case anyway. An example of
"willful" infringement would be a CD-pressing shop. If you burn a copy
of your friend's CD, you most certainly intended to infringe the
copyright. But the intent would only be considered "willful" if you
burned (say) 1,000 copies with the intention of selling them
(actually, even if you intended to just give them away -- profit is
not required).