Open Source Licensing: Software Freedom and Intellectual Property Law

Burden of Proof

Consider first what would happen in a typical licensing dispute under copyright law for a bare license. (Refer to the comparison of bare licenses and contracts in Chapter 2.) A plaintiff will allege that the defendant is a copyright infringer and thus may not exercise any of the exclusive rights of the copyright owner.

1. The plaintiff will have to prove he or she is indeed the copyright owner. Only the copyright owner (or, in the United States, an exclusive li-censee) has standing to sue to enforce the copyright.

2. The plaintiff has the initial burden of demonstrating that the defendant has undertaken one or more of the copyright owner's exclusive rights under the copyright law (e.g., made copies, created derivative works, or distributed). ...