Re: Double edge
The problem is that the only remedy for a failure to "abide by the rules" is to claim damages. Excepting that some jurisdictions make provision for statutory damages, this usually means demonstrating an actual loss. The loss to a claimant that makes its software freely available is in general going to be hard to assess. For example, one of the triggers for requiring commercial licensing of ghostscript (not apparently the one in this case) is "Distributing Ghostscript or MuPDF on the same media with your non-AGPL application": it doesn't seem reasonable that there is much actual loss to the copyright holder if the infringer has included on a CD exactly the same information that the end-user is perfectly entitled to download free. There may be a loss, but is it tangible?
The judgment makes reference to this, saying:
Plaintiff plausibly alleges that Defendant’s use of Ghostscript without obtaining a commercial license or complying with GNU GPL deprived Plaintiff of the licensing fee, or alternatively, the ability to advance and develop Ghostscript through open-source sharing. Indeed, as the Federal Circuit has recognized, there is harm which flows from a party’s failure to comply with open source licensing: “[t]he lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration” because “[t]here are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.
It may be difficult to quantify the value of "the ability to advance and develop Ghostscript through open-source sharing" for the purposes of assessing damages.
Biting the hand that feeds IT
