AFAIK, torrent clients don't keep a log of who they transferred parts of the file to.

If the pirate sold your software (directly or as part of a derivative work) then it had monetary value to him. There are a couple other ways to calculate it as well. Basically, plaintiff and defendant both produce analyses of how much of the defendant's software was actually the offending work and the judge either picks the one which makes the most sense or uses parts of each to produce his own analysis. Both sides have to be careful here to maximize their respective benefit without crossing the line to unreasonable since the judge will discard any analysis he deems unreasonable. Apply that formula times the defendant's gross revenue for the software. If the infringement is willful (defendant knew up front he was infringing and did it anyway), the judge then triples it.

I believe you mean that copyright and patent infringement is a more serious _tort_ than license violation. We're talking about civil law here, not criminal law. No one at Versata is going to jail over this.

Statutory damages are a substitute for situations where real damages can't reasonably be proven. Such as making songs available via torrent where it's plain impossible to know how many folks ultimately received the song. That doesn't appear to be the case with Versata. Courts hate to apply statutory damages where it's practical to calculate real damages.

Also, you missed option E: stall the court proceedings while revising the software to work around the infringement, then do everything practical to minimize the monetary payout for the then strictly past infringement.

The recipient of the derivative work can enforce the GPL license between himself and the creator the derviative work. Said license came into effect as a result of the creator's acceptance of the GPL when he received the original work and its subsequent distribution.

The end user has no standing against the creator of the original work -- that license is between the original creator and the derivative creator. But he most certainly has standing in his license with the derivative creator which the derivative creator is shown to have established as a result of his acceptance of the GPL from the original creator.

Only if the creator of the derivative work accepted the GPL license of course. If he didn't then the work is simply infringing and the GPL does not come into play at all.

Here's this wonder free software, please use it! By the way, down here buried in the fine print you might not be allowed to use it, we'll let you know later if we don't like you. Trust me, it's fraud.

You can distribute your own code with any licenses you please, but each license must completely spell out the rights granted and responsibilities demanded. Lies of omission are still lies, lies with a financial impact are fraud, and the GPL doesn't allow for modification -- if you want to add patent limitations you have to use a difference license.

Versatta can't be in violation of the GPL unless they distributed their software under the GPL. As I understand it, whether their software was distributed under the GPL is still in dispute.

The claim in this subthread was, "the GPL does not create new obligations upon authors who combine original works with GPL works"

If you accept license to the GPL'd work, that plainly isn't true. What part of the phrase "If you accept license to the GPL'd work" was unclear? Yes of course if you don't accept the GPL license to the work then it's simply infringing and nothing in the GPL applies.

A decent argument can be made, but you can come at this one from a number of angles. For example, GPL v2 section 4 says: "However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance." This means that IF Versata accepted the GPL license then none of their customers are in violation unless those customers further redistribute the software. Even though Versata itself is in violation. More importantly, it means that IF Ximpleware asserts that Versata accepted the GPL (they seem to make this claim) that must also mean that the GPL license flowed down to everyone who received the software from Versata and themselves accepted the GPL license. Even if they never requested the source code and don't care to.

But that's just the thing - they ARE using it within the context of using VTD-XML. It just happens to be a copy of VTD-XML that's embedded in Versatta's derivative work. And if you grant that the patent license comes with the download of the GPL'd code then the license must have been meant to cover as many copies of VTD-XML that the downloader cares to use.

That would be simple fraud. Which would essentially kill XimpleWare's case in spite of Versata's bad behavior.

That's an error. Violated != void. Violated means the license remains in full force and effect and you're entitled to enforcement of its terms. But it remains in full force and effect, including all the rights granted to the violator! Void means the license does not exist. They have no rights arising under any license and you're entitled to general remedies at law for the absence of permission.

You're conflating three distinct issues here: unlawful posession of a copyrighted work, unlawful copying and distribution of a copyrighted work and unlawful use of a patent.

Downloading the original GPLed work places Versata's customers in a position where they're entitled to posession of the derivative work. The path gets arcane but that's the bottom line.

Versata's customers are not entitled under the GPL to further distribute the derivative work without versata's source code. Period. They're liable for any such distribution, witting or otherwise, and Versata is liable to them for any damages they suffer as a result.

There's a decent case to be made that separately acquiring the software in a manner compliant with the GPL entitles the recipient to a license to use the Versata patents. Versata's behavior allows the statements they made about patent use in the GPL software to be interpreted that way. It puts the patent claim uncomfortably close to the 50% preponderance of the evidence line.

Ignoratio elenchi.

35 U.S. Code  287 (A) reads in part: "In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement"

So technically you're right, it's a question of damages not culpability. But practically speaking I was right too: failure to adequately mark the patented product hurts Ximpleware's case. In the worst case, Versatta could argue that error in conjunction with Ximpleware's other behavior shows bad faith. That could get really ugly.

Versata, I typoed it.

As far as acceptance of the license goes, it doesn't matter where they steal the source from, the license is not automatically accepted. The GPL is funky that way: one part tries to say it can be automatically accepted, another part concedes that it isn't, and the law everywhere in the US except two states says it isn't.

Woohoo! My browser can run Doom and it only needs 20 times the memory and CPU power of the original.

Why can't I just have a browser that takes a 10th of the CPU and memory and doesn't do all this other BS?

Of course they still have a valid contract. Breach doesn't void a contract. Think about it.

Breach entitles the non-breaching party to restitution and enforcement. How would that work if the contract was void?