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Comment by usui | Hacker News Reader

Does a history of enforcement help in cases like this? The article itself says that Truth Social is "antithetical" to Mastodon's values, but that there's nothing they can do about the usage of their software other than license violations. It sounds like they have a bias to enforce their license in this case.

If Mastodon has a weak history of enforcing their license to other organizations, does it weaken the case? I'm wondering if selective enforcement in the software-licensing world hurts the authority or credibility of a license, in the eyes of the law.

My wondering was somewhat inspired by the way Nintendo aggressively polices the appearance of its video game trademarks on places like YouTube and basically the rest of the internet. I hear an argument is that if they don't aggressively enforce their trademark policing, their legal position wouldn't be as strong if they want to pursue a big violation in the future.

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No, unlike trademark law, copyright law does not require consistent enforcement to maintain. (Copyright law is the basis of the license.)

Also, stating a bias does not imply selective enforcement. I don’t think there are many examples of mastodon instances breaching the terms of the license, and certainly not at this scale.

In general, you don't have any obligation to enforce your rights.

There is the well-known exception of trademark law, but that's in the nature of the matter. If PepsiCo sells Coca-Cola and the Coca-Cola company doesn't react, then the trade mark obviously doesn't allow customers to identify genuine Coca-Cola.

You don't have an obligation and in theory (and only in theory) it doesn't matter but a history of doing it anyway sure as shit helps in court.

Does it? This is the first I've heard of it.

Theoretically no, but the court is more likely to side with you if your lawyer can go down the list checking off each reason this lawsuit is like the last one that you won.

So actually no, then? It actually won't be held against your case. It's just that you don't have a template yet, you don't have a precedent?

Yeah, that's entirely completely different.

Go to YouTube. You will find lots of old BBC stuff; the BBC largely doesn’t bother with active enforcement for anything before 1980 or so.

Now, start a website selling Doctor Who episodes, and see how far your incomplete enforcement argument gets you with the court.

That is still consistent enforcement of the Doctor Who copyrights though.

Your example seems a bit off. Yes, Coca-cola is not required to enforce their trademark via legal means; however, they may lose the ability to prove infringement of the mark later (even in another case) if they do not police use of the mark. I think there was also a case or course of legal thought by some judges that the mark's owner owed a duty (fiduciary maybe?) to actively protect the mark from infringement or risk losing the trademark rights altogether.

I think this question was decided by SCOTUS in Petrella v. Metro-Goldwyn-Mayer, Inc.:

In a 6-3 ruling, Justice Ginsburg declared that laches cannot be invoked as a bar to pursuing a claim for damages brought within §507(b)'s three-year window. However, in extraordinary circumstances, laches may curtail the relief equitably awarded at the very outset of litigation,

In case anyone doesn't know what laches is:

>In common law legal systems, laches (/ˈlætʃɪz/ "latches", /ˈleɪtʃɪz/}; Law French: remissness, dilatoriness, from Old French laschesse) is a lack of diligence and activity in making a legal claim, or moving forward with legal enforcement of a right, particularly in regard to equity. This means that it is an unreasonable delay that can be viewed as prejudicing the opposing party. When asserted in litigation, it is an equity defense, that is, a defense to a claim for an equitable remedy.

https://en.wikipedia.org/wiki/Laches_%28equity%29?wprov=sfla...

A side note: Thank you for using phonetic transcription in IPA. This is very rare and I really don’t understand why it is not used more often.

https://en.m.wikipedia.org/wiki/Phonetic_transcription#

Would the latches doctrine really apply to separate enforcement cases though? My understanding is that doctrine would prevent me from enforcing my rights against a particular actor if I wait too long to enforce those rights… but waiting too long against one actor wouldn’t be relevant if I seek to enforce those rights against a separate actor in a separate case.

You have the correct instinct. Laches (not latches, it really is a different word) is about a specific cause so it only helps if you've got a reasonable case that the plaintiff should have noticed this cause ages ago. If the cause is new that's obviously not going to work.

Thanks! That’s what I thought. It’s been a minute since law school and my in-house brain has been steadily leaking for some years.

I think the other factor is scale. If I copy Mastodon and violate ALL conditions of the license, no one will care. This version will get 100Ks of users and as such is prominent in people's mind as a "just like Mastodon" clone. People will form opinions on Mastodon based on this implementation.

That trademark stuff is an excuse for wealthy litigious companies, it isn't actually how the law works and we should stop giving them a pass.

Disney, Nintendo and similar outfits can afford to go after people who weren't causing them any harm and so they do.

> it isn't actually how the law works and we should stop giving them a pass.

That’s not accurate. Trademark law does require active policing and enforcement, and failure to enforce a trademark can be grounds for losing it.

Yes, big corps probably are more aggressive than the law requires, but it’s a pretty fuzzy, not super well defined, line.

Though it should be noted that a Trademark is different from typical Copyright law. One is inherited from the other, yet cannot stand alone from it.

> That’s not accurate. Trademark law does require active policing and enforcement, and failure to enforce a trademark can be grounds for losing it.

Do you have some actual examples of this? Trademarks which were cancelled not for lack of use (a real reason) but for lack of enforcement ? I don't think that's a thing, which is why I'm asking.

It's true that genericisation is at least a potential threat, although I think many businesses would say that's a great problem to have (your mark can't become generic if people aren't familiar with it, and if they're familiar with it that means you sure have sold a whole lot of product, the real examples of genericisation are famous successful companies such as Xerox or Hoover, hardly stories of failure).

But also this isn't about genericisation anyway. Mere mentions aren't actionable. That's what is insidious about it, you can sue people who are no threat to your mark at all, and the likes of Disney do that all the time. But you can't (successfully) sue people who mention your mark in a way that just contributes to eventual genericisation.

> Do you have some actual examples of this?

It's a good question, and I don't specifically. I've heard this advise from lawyers in various different fields (not specifically Trademark lawyers), but when I go digging for examples, or the specific legislative history, most of my searching ends with "there's no a clear, definitive case on this topic".

So, in a lot of ways, I think you're right to challenge this assertion. It seems more like a recommendation that comes from "an abundance of caution" rather than a clear legal ruling, but I think I was wrong when I definitely stated that "trademark law does require active policing and enforcement". It seems like it might be more accurate to say: "some lawyers believe trademark law may require active policing and enforcement"

Thanks.

> some lawyers believe trademark law may require active policing and enforcement

That's definitely true. Of course we might observe that it sure is convenient that Trademark lawyers believe you should hire more Trademark lawyers... If this is their honest belief then even if it wasn't true they aren't committing fraud since fraud requires dishonesty. So that's nice.

Can you point to a case of someone violating mastadon's license and them not pursuing it?

I'm not sure they have a weak history, though. They enforced their license just as aggressively against Gab.

If they had noted a legal enforcement, it would have sounded like threatening. They did the right thing and just noted the problem for now. Maybe the other party will fix the infringement and close the issue.

It depends perhaps on whether it ends up in anti-SLAPP or something like that. But if, for example, you don't sue a hospital for showing your film to a group of children, but you do sue a school, the fact you didn't sue the hospital probably doesn't matter too much, even though your bias is against caretakers of healthy children as opposed to sick children.

Not a legal opinion, of course.

SLAPP is a mechanism to short-circuit certain attacks on freedom of speech, it has nothing to do with intellectual property.

That was probably a reference to the fact that Trump has filed anti-SLAPP suits against people suing him as an intimidation tactic and to run up their legal bills.

RICO is a mechanism to fight organized crime, and yet... Laws have unintended consequences.

> If Mastodon has a weak history of enforcing their license to other organizations, does it weaken the case?

No; it’s normal for copyright violation to be selectively enforced. There are a very few rights bodies who enforce for everything (notably, the movie industry tends to do this) but in general copyright holders only go after big offenders.

The near universal agreement here (from non-lawyers) that lack of past enforcement won’t affect future enforcement is a signal to me that it actually might.

Expecting Donald Trump to observe the rules and norms that are not strictly enforced is extremely naive. He thinks only suckers do that. What does he do? He ignores all of that and gets ahead.

That's why I call people like him "termites of civilization". They slowly eat at the foundation, until the society itself collapses. We are already seeing it. The pandemic of selfishness and shamelessness, and overwhelming rudeness toward each other. Just look at what the service industry has to put up with - and it all came directly from the top. Donald Trump let everyone know that the rules are NOT for them, that it is totally OK to be a shit-tier human.

So weird that everything started collapsing exactly on January 20th, 2017.

The people who have been in power for 40 years are definitely NOT the problem. It was just that last guy.

If both-side-ism makes you feel better than everyone else. It didn't start collapsing in 2017. This has been brewing for a long time, one could argue since the 90s, when political discourse and bipartisanship started degrading. Donald Trump was just the catalyst needed to accelerate the final collapse. And by collapse I mean "collapse". American democracy is not surviving the next 20 years.

As an aside, it it really strange to see people falling in front of Trump to protect him on HN, a place with seemingly smart people. A man with zero principles, no moral compass, and fewer redeeming qualities than Caligula.

And all of this in a thread that is wondering - why doesn't Donald Trump care about our rules?

Off to shout obscenities at a school board meeting, toodles!

Every generation thinks their problems are the worst. It’s just more of the same political fighting where one side demonizes the other to try to get people on their side. The world moves on until the next time they need to demonize someone and nothing of importance really happened. There is no collapse, just on to the next candidate.

Everything stays the same until the moment that it doesn't.

The first time in American history there was no peaceful transfer of power, the loser claimed the election stolen, and refused to concede. So, no, it's not "just another candidate". This false both-side-ism is intellectually dishonest.

It’s not both side ism. They literally lied for years and spent millions of tax payer dollars trying to take out the president, and yet nothing more than words were said by the other side. Send pretty insignificant to me. If anything the opposite party you are claiming abused the legal system while the other simply expressed an opinion with no abuse of power whatsoever.

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