Feasibility Report for Customer-Enforced Licence Compliance

Request

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.

Output

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).