I work in the IT field. We use a lot of little free apps. I started thinking the other day. Say we needed to purchase some licenses for a piece of software. The software does not self check or “call home” when a key is entered its basically the honor system. What if when we want to buy the software we find out that the company does not exist anymore? Could we still use our software? I know there would be no one to press charges against us. But thats not my question. On paper if a company does not exist anymore or went under could I use all the software i want without breaking the law? How can i pay royalties?
Very few companies simply vanish without selling their assets. Copyrights on software are assets that usually get liquidated when the company goes bankrupt. Just because the original developer does not exist does not mean the copyrights are not enforceable. Some other company buys them, and it is up to them whether they want to enforce them. But that is their right, if they so choose, and if you are violating the copyright, you could be sued at any time if the owner finds out about it.
OK, now let’s go back to reality. What you have is abandonware, and the odds of anyone ever caring about it again are minimal. You can almost certainly use it without registering indefinitely and nobody will ever lift a finger or even realize you’re using something they technically own. Remember: Lawsuits are business by other means, and they have to pay for themselves and, usually, turn a profit for the person initiating them.
I’m going to remember that quote, nice one.
If the MBAs can quote Sun Tzu, the rest of us can quote Clausewitz right back.
Fascinating.
Does anybody know whether the damages that the copyright holder could sue for would be limited to the royalties that ought to have been paid?
IIRC there is an element of patent law that allows the infringee to sue for the money he would have made if the infringer had not infringed, which can be more than the money the infringer made. That is, customers will not flock to an infringer who charges as much as the infringee, but the larger sum that would have gone to the infringee is available in court.
I think there is also some reason that allows tripling the damage award, such as if the infringer demonstrates awareness that he is infringing (such as by indemnifying his customers).
I believe I have seen on the copyright acknowledgment pages of some anthologies, the notice that the editor attempted to find the copyright holder for a certain story, and, failing that, had the royalty held in escrow. I don’t know the legal status of such a notice.
I assume that the OP has searched for a new owner of the tool. Given this, I suspect that it is unlikely someone would risk the cost of a lawsuit for one probably small license fee, especially if there is evidence that the new owner was not actively supporting the tool. Plus there is the question of how they would find out. My old patent attorney often noted that patents on methods were hard to enforce, since it quite a lot of effort to determine that a particular design was done using them.
There’s probably not a totally definitive answer to this. The best advice I can give is to read all of Title 17, Chapter 5 (“COPYRIGHT INFRINGEMENT AND REMEDIES”) of the United States Code:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sup_01_17_10_5.html
Section 504 is probably the most pertinent.
The statutory damages are much more complicated, and (if I’m reading this right) are in lieu of actual damages rather than in addition to them.
Section 505 basically just says that they can sue you for legal fees, too. That probably goes without saying, though.
For whatever it’s worth, section 506 kind of implies that you probably can’t be held criminally liable for this sort of thing.
If you really are dealing with abandonware, you’re pretty well off the hook for B and C. Arguably, A might apply since you’re talking about a commercial setting, but not necessarily. Since we’re talking about the IT department rather than the main function of the company, you don’t gain any direct commercial advantage from the infringement. On the other hand, they could argue that it saves you money on IT expenses, and therefore there is a commercial advantage.
That said, filing civil lawsuits that have little to no chance of collecting damages is a no-no. Judges don’t like it when people waste their time. If someone files a copyright suit over software that they haven’t sold for years and that has no successor, the case is likely to be dismissed before it ever makes it to trial – especially if the IP in question is a bargain bin hand-me-down from buyout out a dying company’s assets.
>For whatever it’s worth, section 506 kind of implies that you probably can’t be held criminally liable for this sort of thing.
The whole thing is part of civil law, not criminal law, isn’t it?
Go go gadget DMCA! Previously, Title 17 only dealt with civil law. Now it’s both. The DMCA is an amendment to Title 17, and section 506 was added to Title 17 as part of it. The criminal penalties are specified elsewhere, as alluded to in that section.
So officially, copyright violation is considered theft – but only if it meets one of the conditions of Title 17, Section 506.
I suppose it’s possible to prosecuted criminally without civil charges being filed, but it’s unlikely to ever happen that way. A criminal conviction would pretty much grant an automatic win in civil court. I can’t imagine any company passing up the opportunity for free money unless maybe the defendant is totally bankrupt and they know they can’t collect.
What about software where the parent company still exists but the software itself is considered end-of-life and no longer supported? An example would be Windows NT Server. You can no longer buy the software or licenses for it, but the licensing system for # of users connected is based on the honor system. If you just turned up the counter from 5 user connections to 10?
Yes, but since Microsoft still exists, you should first call them up and tell them you need more licenses. I can’t imagine they’d turn your money down. Especially since they have you over a barrel and won’t even have to provide support.