There's another problem, pointed out by Theodore Ts'o in a private response
to my earlier message where I expressed the opinion that the person who said
the GPL on Linux was essentially worthless because the Linux developers
weren't selling Linux, and so there would be no damages.
Mr. Ts'o pointed out that it doesn't appear that anyone is taking care of
certain copyright formalities in the U.S., such as registering the copyright
and depositing copies with the Library of Congress. Although these
formalities are *not* required for copyright protection in the U.S., they
*are* required to enable certain copyright infringement remedies. In
particular, you can't ask for statutory damages if you skipped the
formalities, and you can't ask for attorney fees if you win. You can
still get an injunction if you win, and you can ask for actual damages
and the infringers profits from the infringement. Actual damages will
be close to zero, and unless the infringer is really big and it is a major
product, profits attributable to the infringement is likely to be fairly
small.
The net result is that there is a good chance that any money won from a
Linux copyright infringement suit against someone small would probably not
be nearly enough to cover the cost of bringing the suit.
Legal action outside the U.S. should not be affected by the lack of
registration, of course.
By the way, if registration is made within three months of publication,
no remedies are lost. Registration is cheap ($20) and simple. I'm not
sure how the unusual nature of Linux affects things, but perhaps it would
be a good idea to at least register some of the major components of the
kernel, such as something that is important enough that any infringer would
probably not be able to replace it and that is stable enough that it is
not completely changing too often. Then, every three months, just file
new registrations on all the versions of that component that have appeared
in the last three months.
--Tim Smith
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