Software licenses in practice

Question

Almost all questions and information on both SO and "Google" describes how different licenses works and what license to choose for your work?

But how do they work in reality.

Almost everyone I have spoken to have vastly different thoughts of how they work, including hard core open source developers that gladly share their libs and consultants who is only interested in money and would never reveal their libs.

First I will give my impression of how they work in practice with three questions / statements and you can agree or disagree with me on those.

1. Lets say I make a large application and have a small portion of that from GPL code, then the copyright holder can't do much about it as it's deemed non essential code for my application and thereby the "law" rules over the GPL?

2. If the code is generic the copyright doesn't hold. For example if I make a tutorial on how to set up a chess engine no one have to care about my license. That's because my code is mechanical in nature.

3. If I use a lot of GPL code that is essential for my application and don't disclose it and someone finds out, my "punishment" will be to release all my source code, large companies are terrified by this.
   But for a small hobby developer this isn't much of an issue as the software wouldn't be written at all or would be open sourced from the start anyway? I don't like this approach personally because I find it unethical and disrespectful to the original author.

EDIT: Clarified as a comment made was that I din't ask a question. My question is are the 3 statements correct.

Answer 1

There is very little or no precedent for what the "law" actually thinks about most open source licenses in most jurisdictions. One thing to note is that breaking an Open Source License is likely to not be considered copyright infringement. It's a breach of contract. The work was not used without permission, permission existed and the terms were violated. Copyright holder vs infringer is very different from licensor vs noncompliant licensee in court. (and very different across jurisdictions)

There is so little precedent I think it would be speculation to say what your "punishment" might be in a case that actually went to trial. Generally for a breach of contract it would be monetary damages. Nobody can say if a particular judge or jury would require the defendant to retroactively comply with the original terms. It would be surprising though.

The 'punishment' would really be the damage to reputation. The cost of the PR effort for a large well known company to recover from the fallout of getting caught "stealing from the community" is the real disincentive in my opinion.

Answer 2

Here's how it works in practice:

1) If you're a small fry, hobbist, or otherwise inconsequential. Licensing doesn't matter because nobody cares. That's not legally true, but it works out that way. Quite often you hear stories about previously small fries making it to the "big time" (for variable quantities of "big") and they wish they had cared more about their licenses.

2) You're a big corporation that wheels and deals in proprietary code. You collect a number of patents not to actually get royalties, but use as a nuclear option in case any of your competitors nukes you for violating their patents (which you are).

3) You're a hippie that uses open source software because you want to get things done with software rather than worry about who owns what and who gets paid to write the software.

IANAL, this isn't legal advice. It's more like a cynical reflection on the joke that is IP laws.

Answer 3

In my view, your question is really about how effectively the copyright holder can enforce their copyright and licensing terms on the internet.

Whilst the actual wording of copyright laws do vary around the world, there are international treaties signed by many countries that define the basic copyright protection that signatories have to enact in their countries laws. That said, implementation and enforcement of the laws does vary considerably expecially around "fair use" exemptions.

In case (1), the probability is that the copyright holder probably does not know that you have copied their code, and are attempting to profit from it. The likely outcome is that they do nothing because they do not know. However, should they find out and then choose the legal approach, then the outcome is likely to be that you have to pay a substantial sum of money to lawyers, you have to pay them damages for the copies of their code that you have shipped, and you are not allowed to continue to distribute your product. In the mean time, your reputation with your customers is destroyed.

In case (2) The person who created the site is expecting people to follow their example to write their own programs. If they cared about their intellectual property rights on that example code, it would have remained private, and not published. If this kind of copying did end up in court, a significant issue here is likely to be whether copying actually took place, or did you actually create similar code (either independently or based on the teachings from their site). Even on a "balance of probability" legal test this may be a significant challenge for the copyright holder to show that you copied rather than learned.

In case (3), as you say, this does scare companies. In this scenario the company faces a choice of testing the license terms in court, and facing the court sanctions, which are likely to prevent them from continuing to distribute their product, to start complying with the license terms and to give away their source code too. It is probably too late to just rewrite the code removing the copied source. If this scenario occurred as described, then it would be symptomatic of a complete loss of control by the directors of their employees actions, and you would have to wonder how long before the company collapses anyway. However, a milder version does occur where one aspect of a companies product is compromised, and to protect their reputation, companies do tend to outsource their associated code.