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An Opinion on «Shawn Bentley Orphan Works Act of 2008» - open source application

As far as I know, the only way to punish for an open-source copyright infringement is via punitive damages. The owners of an infringed copyright, who opted for open-source licensing, quite often are innovative hobbyists and simply have no money to carry the legal burden unless there is a possibility of punitive damages to pay for lawyers to work on their cases. The legislation specifically removes the only way for this community to survive.

The open source licenses’ value is not in a direct monetary gain for the owner, but in secured return flow of value back to the community. Such a value is impossible to express in terms of «reasonable compensation», which is the only dispute remedy suggested by the legislation. So what an abuser is going to pay, when caught? Nothing, and keep using the software? There is nothing in the bill, which upholds the licenses, set by copyright owners. If fact, the way I read it is it designed to disregard the license, if an infringing side made it look like acting in a good faith.

Open source software from individuals or small groups will have no protection and way to enforce the return flow of value. That creates an extremely lucrative ground for copyright abuse. Especially for large companies, which have a history of strong-arming and taking advantage of creative individuals.

Imagine that a copyright owner of an open-source/creative commons work of art or software deceases. Does that mean, that anyone can do whatever with his/her work? Is the license considered unenforceable anymore? If the author is not to be found does that mean, that improvements to a piece of open-source software no longer have to be returned to the community?

Please, help to DO SOMETHING about this awful development. Please, write your congressman its a public disservice legislation. Tell your friends and co-workers. Blog about it. Anything.

Thank you!

2008-10-03

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