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Suppose that the original creators can't (or won't) enforce a license on their software/code, but that work is still popular.

I guess if you want to visualize it, I'll throw out a convoluted hypothetical:
Imagine a very small group of developers that released a code project under an open-source license. The repository was hosted on their servers. However, everybody on the immediate development team passed away in a tragic accident or something. Their servers shut down after this happened. The project had a fairly large user base, and so others began to host the last revision on their own servers for others to download.

(Yes, I have an active imagination)

Does abiding by the license simply become a matter of morality by its users, or can there still exist a legal penalty when there is no one user or group to enforce it? Could anything be done if an unscrupulous user decided to branch off the project and use it under a different license?

I am not looking for legal advice -- I am simply curious about how software licenses work. I tend to think of strange situations and wonder what would happen in those scenarios.

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ah, bus factor refactoring. –  user1249 Dec 27 '10 at 10:56
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Someone can always claim some portion of ownership - suppose the entire dev team was rolled under the bus, you still have their family members who can try to lay claim to something. Do your homework, find out what you can, get written consent from the closest family members. I know this was a hypothetical situation; regardless, don't think that you are safe just because you can't find the original developers. –  IAbstract Dec 27 '10 at 15:01
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@dboarman this is a bit delayed, but could you post that as an answer? –  Corey Jan 9 '11 at 23:09
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8 Answers 8

up vote 4 down vote accepted

Someone can always claim some portion of ownership - suppose the entire dev team was rolled under the bus, you still have their family members who can try to lay claim to something. Do your homework, find out what you can, get written consent from the closest family members. I know this was a hypothetical situation; regardless, don't think that you are safe just because you can't find the original developers.

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Do laws matter if there is no police around to enforce them?

I think copyright is a complex matter and varies from country to country. You can pretend it's not there, but like any other offense it eventually might haunt you.

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You want to bet your company on some licence not being enforced?

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Or, you can steal all the code in the world, dominate it [the world, not the code, although code domination is also a nice hobby], and then no one will dare confront you. –  muntoo Jan 10 '11 at 4:32
    
@muntoo, you may want to provide a more detailed schedule for that plan. –  user1249 Jan 10 '11 at 8:55
    
ørn Unfortunately, I cannot disclose the information at this time. However, I will tell you the date has been pushed back to 2022 by 10 years. –  muntoo Jan 10 '11 at 17:05
    
ørn: I can only imagine if Pinky & The Brain had been programmers. –  IAbstract Jan 10 '11 at 19:29
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In the case you describe, intellectual property owners are the direct descendant(s) of the deceased developers.

Intellectual property owners will usually sue unauthorized parties:

  1. If there is a strategic reason to do it (usually for big corporations)

  2. If the other party is able to pay a judgement/settlement

  3. As a matter of principle

  4. To annoy or destroy them

Pick one or more reason!

My lawyer always told me:

if you leave other party without being sued you train them to do it again.

I think it's pretty good advice.

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Software Licenses work on basis of FEAR. Suppose you alter the code which was not supposed to be changed and distribute it, no one is going to find that out easily and you are presumably safe BUT once you are found out it is going to cost you a few million dollars to settle the matter.

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Once you start to sell your application there might be a little something in the contract saying that you 'own' the code you're selling.

Not owning the code can have nasty side effects like a breach of contract.

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If someone finds out you have misappropriated the open source license, he might search for the legal successor of the original copyright owners and persuade them to sue you. Or buy the copyright from them and sue you himself. You are never completely safe.

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The hypothetical was that there exists no successor. They all died in a horrible accident. –  Corey Dec 27 '10 at 11:02
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There is always a successor. –  user281377 Dec 27 '10 at 11:09
    
@Corey: That would only be the case if there are no living relatives of any of the developers left. That would be a very unlikely scenario. –  Bart van Ingen Schenau Dec 27 '10 at 13:05
    
@corey What if they had made wills passing on all their worldly goods to other people? This is getting to be one heck of a big bus :-) –  James Dec 28 '10 at 12:32
    
@Corey: Who owns their other property? If my family all died in a house fire tonight, somebody would wind up owning my car. Copyrights go by the same principles. –  David Thornley Dec 28 '10 at 16:16
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I am surprised how many people have answered based on emotion.

Of course none of this is legal advice:

Most software companies have clauses in their licenses, either required by their clients or given out of good faith, that allow their clients to continue using their software in the event their software company goes under (or in your case they all die) and would even be able to get the source code. This has been the case in companies I've worked for in the past.

Copyright law is a very tough subject to deal with. Let's take trademarking for example. If everyone in the world starting calling, searching the internet, "Googling", Google could have a real hard time keeping the rights to their name. Right now I'm not so sure they care. That's why Jello is a trademark and you can't call any gelatin food Jello, even though we most would. This paragraph was a bit off topic.

The important question is, does the original license holders know you are using their software in violation of the license? If yes, and they continue to let you, it could be construed as consent. If they do not know, they can always come back and sue. This has happened over the years with original *nix code on numerous platforms, especially Berkley sockets.

Again I just made all this up and should never be used for legal advice. For entertainment purposes and ego stroking only.

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While there's some good stuff here, it's completely unrelated to the question asked. Moreover, BSD Unix stuff appears all over the place perfectly legally. There was a legal proceeding that resulted in BSD being owned by the University of California, and it's then distributed on a very nonrestrictive license. –  David Thornley Dec 28 '10 at 16:14
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