Is it possible to get rich prosecuting GitHub users of an unlicensed fork?

Question

On the thread Half of GitHub Code Unsafe To Use (If You Want Open Source) you can find a recipe to getting rich:

1. Post it on Github
2. Make everyone think it's free to use.
3. Sue everyone you can get your hands on who do.
4. Profit

For instance, the package https://github.com/SublimeText/LaTeXTools has no explicit licence (Berne Convention) and has hundreds of forks on GitHub, and several of them pushed commits to their forks, as we can see on https://github.com/SublimeText/LaTeXTools/network.

So by this project being on GitHub, I am allowed to fork it by the GitHub ToS.
However if I create derivative works from it (pull requests, new commits to my fork, etc.) can Sublime Text prosecute me and everybody by violating the "All rights reserved" copyright granted by Berne Convention law, and start getting rich?

Meaning that, to contribute to that project LaTeXTools is pure danger of getting prosecuted, as I am violating their copyright by adding new commits to my fork?

Answer 1

Yes, creating derivatives of a copyrighted work is generally the exclusive right of the copyright holder. If the copyright holder has not licensed this right to you, you don't have the right to create or distribute a derivative. You only have rights that the author is required to offer you under the Github terms of service, which does not include the ability to prepare derivatives. Largely, Github only requires rights necessary to protect themselves from legal action (e.g., rendering someone else's code on their website, indexing contributions in a search database, making sure their "Fork" button does not cause a copyright violation, etc.)

As for whether or not you could "get rich" on pursuing such violations depends on how your jurisdiction awards damages for copyright violations, versus the cost of hiring a lawyer. It's generally much easier to just get infringing content taken down, rather than dealing with the time, paperwork, and expense of engaging with the judicial system.

There is also a legal principle called "estoppel" which means that if someone has made it clear you were allowed to do something, they can't sue you for doing it. If the owner of a copyrighted work says, "Everyone, please submit bug fixes to my repo," then they can't successfully sue you for doing that, even if they haven't formally issued you a license to prepare derivative works. This is a little dangerous to rely on, since what is and is not allowed is not formally specified. (For example, in my sample quote, bug fixes are allowed, but where is the line between "bug fix" and "new feature"?) If any authors have encouraged you (or the public at large) to make derivatives, then they would be estopped from suing you for your derivative of that work. However, offering read-access to the code by itself does not constitute encouragement or permission to make derivatives.