150,000 Reasons to Comply With an Open Source Software License

Open source software license agreements allow you to use software for free. They tend to have a few requirements such as provide the source code to customers and transfer modifications to the source code to the community. Look at the license carefully as there are different version with different requirements. Since the license is free, you may feel there is no reason to comply with any of the terms. Since the software is free, you may think there must be no damages for the author of the software to recover. Not so.

While the software is free, damages for non compliance may seem trivial. That depends. First there is an issue whether a breach of a software license agreement is a lawsuit for breach of license agreement or copyright infringement. Jacobsen v. Katzer 535 F.3d 1373 (Fed Cir. 2008). By granting a license to the copyright, the claim is for breach of license agreement unless the acts are outside of the scope of the license. In Jacobsen, the court held that failure to comply with the open source license was an act outside of the scope of the license. That means the defendant could be sued for copyright infringement.

The next problem is trying to prove actual damages when the software was given away for free. But if the software author registers the software, no damages are required. A plaintiff may elect statutory damages ‘regardless of the adequacy of the evidence offered as to his actual damages and the amount of the defendant’s profits.’ “ Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (citations omitted).

Normal statutory damages max out at $30,000. But if the copyright infringement is willful, a court may award statutory damages of up to $150,000. 17 U.S.C. § 504(c)(2).  And you may have to pay attorney’s fees too. 17 U.S.C. § 505. This means, if all the stars are aligned, a party could be liable for $150,000 for using free software the wrong way.