[Linux-aus] [Fwd: [LACTTE] Grant Proposal: Feasibility Report for Customer-Enforced Licence Compliance]

Melissa Draper melissa at meldraweb.com
Thu Dec 3 22:12:32 EST 2009

Forwarded (with permission) for discussion as per the grants policy at

-------- Forwarded Message --------
From: Brendan Scott <lists at opensourcelaw.biz>
To: committee at linux.org.au
Subject: [LACTTE] Grant Proposal: Feasibility Report for
Customer-Enforced Licence Compliance
Date: Mon, 16 Nov 2009 12:10:45 +1100

Request for Grant under the Linux Australia Grants Program

**** Date: 16 November 2009

**** Project Name: 
Feasibility Report for Customer-Enforced Licence Compliance

**** Aim of the Project:
Historically open source compliance involves bringing, or threatening to bring, court action in copyright to enforce the licence terms.  This approach has a number of problems:
* only a copyright holder (or exclusive licensee) can bring a copyright action;
* court cases involve non-trivial filing costs; 
* court cases often require specialist (and expensive) legal advice;   
* commencing litigation brings with it the risk of being exposed to the legal costs incurred by the defendant in the event the action is unsuccessful.

I propose to investigate the feasibility of initiating enforcement/compliance action through consumer legislation.  If compliance is feasible through the consumer legislation it will have the following benefits:
* very wide concept of standing (eg any purchaser can bring an action, even if they are not copyright holder and, in some cases, even non-purchasers)
* initially there is an administrative procedure to pursue enforcement (lowering enforcement costs and insulating the initiator against defendant's legal costs)
* consumer protection bodies may assist in enforcement (lowering enforcement costs)
This would primarily involve reviewing the Trade Practices Act and, if relevant, related cases for requirements under Part V (relating to misleading and deceptive conduct) and Part VB (relating to implied warranties) to determine whether non-compliant vendors can be argued to be in breach of the Act. 

The output of the work would be a report on the review and an explanation of the feasibility of such an approach. 
The report may be licensed openly (eg GPLv3) and would be drafted accordingly (this may mean that the report would be more circumspect than if it was not published openly). 

Report to be produced by 31 January 2010 if approved before start of December 09, 14 February if approved in December 09, otherwise within 4-6 weeks of grant approval.  

**** Person Responsible for Request:
Brendan Scott

**** Request:
Grant amount: $3,000

My Contribution: Costing for this project includes 1:1 contribution of my time.

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Melissa Draper

w: http://meldraweb.com & http://geekosophical.net
p: +61 4 0472 2736

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