copyright terms-of-service
What happens to the third-person in a copyright-infringement?
<p>A friend just asked me a question about copyright and terms-and-conditions when using a product and it's quite interesting.</p>

<p>I have a website where I host software projects, and include a license with every release of my software. What happens, if say someone downloads my software, removes all my licenses, and reuploads it in their own domain. Sure, I can send them notices to remove it, but lets say someone downloads it from their site and then uses it in a commercial product, or in a way sanctioned by the license.</p>

<p>Does this third-person then suffer in some way as the source they obtain it from was illegal or do they immediately have to abide by the <em>real</em> terms and conditions if contacted by the owner of the software?</p>

<p>The law will vary by jurisdiction.</p>

<p>For example, under Australia's Copyright Act 1968, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s115.html" rel="nofollow noreferrer">section 115(3)</a> provides:</p>

<blockquote>
  <p>Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff is not entitled under this section to any damages against the defendant in respect of the infringement, but is entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.</p>
</blockquote>

<p>"An account of profits" means that the infringer has to pay to the copyright owner the profits that it has made on the infringing work.</p>

<p>Let's use an example, with software licensed under the <a href="https://en.wikipedia.org/wiki/GNU_General_Public_License" rel="nofollow noreferrer">GPL</a>. The GPL forces any software that uses that library to also be licensed under the GPL, while allowing anyone who obtains a copy to also obtain its source code and have the right to modify and re-distribute that code.</p>

<p>So, imagine I create a library that is licensed under the GPL. Person A comes and takes it and sells it under their own license, and makes money. Person B obtains a copy of the library from Person A.</p>

<p>Now, my action against Person A is clear. I can sue and fight for the following damages:</p>

<ul>
<li>Actual Damages - any damages that I received as a direct result from Person A's actions.</li>
<li>Punitive Damages - any damages that are incurred due to the <em>wilful</em> act itself, to punish Person A, and to deter anybody else from doing something similar.</li>
</ul>

<p>Now, Person B didn't mean to infringe on my copyright, did he? So I can sue only for the actual damages that I incurred, but I can't seek punitive damages because there was no wilful action here. </p>
