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Found a user on the forum trying to solicit business for his website, a good user reported it and I checked the website out.

Firstly and most dangerously it's attempting to sell our original software, which is open source. Our open source software is around 15mb big and he's serving a 50mb download and trying to sell it for $20.

He's also stolen our CSS/images/site design in general which is all custom built.

I attempted to open reasonable discussion with him, and he responded promptly saying he would remove offending materials if he could just have 3 days to sort it out which I accepted. I'm not sure what his plan was because everything on that site is offending material.

Anyway he messaged back saying the site was offline, and it was, but it went back online shortly afterwards.

It's pretty sickening that someone is selling open source work as their own, (the site about us page references him as the sole developer etc etc, it's unbelievable to read it).

I want to shut it down, what are my options? I'm going to contact his domain registrar, web host, and Paypal (that's how he's selling the program).

Any other ideas?

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what open source license are you using for your software? –  JMC Jul 15 '11 at 16:49
    
@JMC it was GNU unfortunately –  Tom Gullen Jul 15 '11 at 19:25
    
Okay so you already know where you stand with that license. I asked because that would have been your best option for legal recourse with a license that protects against commercial re-distribution. You could look for ways that he has violated the GNU license, but it's a question as to whether that is worth your time. –  JMC Jul 15 '11 at 19:41
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4 Answers

up vote 5 down vote accepted

Although I'm not an attorney, as a web developer who also deals a bit with clients who have various IP needs, short of hiring counsel (which usually is impactical) there are a few actions which should be fairly effective.

Step one is to do a WHOIS lookup on the website owner and get in touch with the abuse department of the hosting company ASAP. Provide details about the situation, any supporting documentation along with proof that you tried contacting the offender and also you should be ready to prove that you are the owner of the code in question.

In addition to contacting the host, it would be a good idea to send a DMCA takedown notice along with a Cease and Desist letter from yourself and counsel (if possible -- getting a letter signed isn't going to cost nearly as much as a trial) and send copies to the host and site owner via certified mail.

With the cease and desist and DMCA notices -- typically they all follow a similar format so it isn't like a contract which needs hours of customization. Rather it's simply a notice saying that if the content isn't taken down, you reserve the right to pursue legal action.

In addition since your project is open source, you might be able to get pro-bono legal help or at least plenty of support to help combat the offense. When it comes to open source code, copyright violations are taken very seriously in many instances -- even if the open source coders are volunteers because ultimately unless you protect your IP rights, everyone will milk things from you.

I don't know much about pro-bono legal aid for open source software, however if you have a look at the EFF, GNU, and other major open source organization websites, you should get the information you need.

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Most of the popular open source licences (e.g. GPL, MIT) permit software to be resold. They also permit it to be redistributed as part of a larger file collection, so long as the original licence is included with the bundle.

So, while their business practises sound shady and I can sympathise with your position, the only thing they appear to have done 'wrong' in a legal sense is to reuse your HTML, CSS, and images without permission. As such, theonlylos' advice about issuing a DMCA takedown notice (for the design, not your open source project) and contacting the web host to ask them to remove the copied site is probably your only option.

But contacting PayPal is unlikely to be fruitful; they will want proof that someone is selling your intellectual property without your permission. If you used an open source licence, the chances are that you gave explicit permission to resell your product in that licence, perhaps without even realising it.

In your shoes, I would do my best to market the open source project to make it plain to all that it's available at no cost (or, if you're selling it, direct from its creators who will offer great support). That way, it's less likely anyone will pay for it from another source.

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+1 for the DMCA. I'd say send one to their host and another to each search engine. –  John Conde Jul 15 '11 at 18:04
    
The sad thing is if he sends a DMCA to their hosting provider about the FOSS software chances are the site will be taken down –  qsylalyn Mar 26 at 23:56
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I do believe Google and the other major search engines also follow DMCA notices because quite often I've found that on queries like music and videos they have a notice at the bottom saying something like "x results have been blocked due to DMCA violations for more information check..." and they link to a website (I forget the name -- think it's ChillingEffects) where they have an entire respiratory of DMCA notices that they publish for everyone to see (similar to how trial details are usually kept in public files).

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You unfortunately don't make it clear which license it's under exactly, the gpl is a fairly restrictive license, however, and he is bound to violate it in some ways. if he is selling your software, he must attach the gpl and make it clear that it's open source.

The GPL additionally states that a distributor may not impose "further restrictions on the rights granted by the GPL". This forbids activities such as distributing of the software under a non-disclosure agreement or contract. Distributors under the GPL also grant a license for any of their patents practiced by the software, to practice those patents in GPL software. The fourth section for version 2 of the license and the seventh section of version 3 require that programs distributed as pre-compiled binaries are accompanied by a copy of the source code, a written offer to distribute the source code via the same mechanism as the pre-compiled binary or the written offer to obtain the source code that you got when you received the pre-compiled binary under the GPL. The second section of version 2 and the fifth section of version 3 also require giving "all recipients a copy of this License along with the Program". Version 3 of the license allows making the source code available in additional ways in fulfillment of the seventh section. These include downloading source code from an adjacent network server or by peer-to-peer transmission, provided that is how the compiled code was available and there are "clear directions" on where to find the source code.

I unfortunately couldn't find anything about having to state the original developers, but that issue is quite different from the website code he stole for which i assume you do have the copyright (although i'm not entirely sure how to enforce this).

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The GPL (v3, section 7) allows you to "supplement the terms of this License with terms [...] c) Prohibiting misrepresentation of the origin of that material, or requiring that modified versions of such material be marked in reasonable ways as different from the original version", but does not include such terms by itself. It does, however, require modified versions to include your copyright notice (sections 4 and 5). –  Ilmari Karonen Nov 10 '13 at 20:21
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