Injunctions

 <  Day Day Up  >  

Injunctions

Usually an injunction is of far greater concern to a defendant than monetary damages. An injunction is:

A court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury . (Black's Law Dictionary, 6th edition.)

Injunctions will be ordered by a court when economic damages are not adequate to compensate for the wrong. On the other hand, courts are reluctant to issue injunctions when monetary damages would be sufficient to redress the wrong.

Consider the financial repercussions to a company of being ordered by a court to stop using software that has become an essential component of that company's processes or products. Risks like these often make injunctions far more frightening than monetary damages.

In the previous section I described a situation in which a li-censee had failed to publish a copy of the GPL with his software, in violation of GPL section 1. My client realized we might not recover much in damages, but at least we might be able to encourage a court to grant an injunction against any further use by that licensee of my client's software.

But would the court find that this was a "material condition" of the GPL whose breach could justify such a dramatic remedy as injunction? Such questions are particularly troublesome for bare licenses like the GPL, because the concept of materiality of a condition is found only in contract law. One would hope that courts would balance the equities in such situations so as to avoid terminating open source licenses for simple breaches that can easily be cured (i.e., by simply publishing the license).

On the other hand, the threat of an injunction can often cause licensees in breach to cure their breaches before the court acts.

In my client's situation, unfortunately , the licensee had already stopped using that GPL-licensed software, so an injunction was moot anyway. We ultimately never tested any of our damages or injunction theories in court.

 <  Day Day Up  >  


Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

flylib.com © 2008-2017.
If you may any questions please contact us: flylib@qtcs.net