An Open Source Legal Breakthrough 292
jammag writes "Open source advocate Bruce Perens writes in Datamation about a major court victory for open source: 'An appeals court has erased most of the doubt around Open Source licensing, permanently, in a decision that was extremely favorable toward projects like GNU, Creative Commons, Wikipedia, and Linux.' The case, Jacobsen v. Katzer, revolved around free software coded by Bob Jacobsen that Katzer used in a proprietary application and then patented. When Katzer started sending invoices to Jacobsen (for what was essentially Jacobsen's own work), Jacobsen took the case to court and scored a victory that — for the first time — lays down a legal foundation for the protection of open source developers. The case hasn't generated as many headlines as it should."
Don't break out the champagne yet (Score:5, Informative)
The higher court made a finding of fact and then sent the case back to the lower court. This is good, but it's not a clear-cut victory. What really needed to happen, IMNSGDHO, was for the higher court to find unambiguously in Jacobsen's favor and then issue a hardcore smackdown to both Katzer and the lower court judge.
From TFA:
Instead of trying to show that he did not copy Jacobsen's software, Katzer attempted to defend himself by asserting that the terms of Jacobsen's Open Source license were not valid and could not be enforced on Katzer, and that JMRI was essentially in the public domain. ... The judge agreed with Katzer.
Katzer is scum, and the judge in question is an incompetent fool. Katzer should be subject to criminal charges, and the judge should be censured if not actually removed from the bench. Anything less than that is not enough to get the point across.
Re:Open source people are greedy too. (Score:5, Informative)
From the definition of stealing that says "to take somebody's work and pass it off as your own".
I think this fits case fits the definition of stealing quite nicely.
Re:Open source people are greedy too. (Score:3, Informative)
You cannot steal copyrighted material. It is infringed upon. Only physical objects can be stolen.
When people put their work under an open source license, they do so with the intent and purpose of sharing. When someone infringes on that intent, it makes people angry. It's not greed as much as it is being offended and abused.
Re:Open source people are greedy too. (Score:2, Informative)
Because that's not the definition of "steal". Slashdot loves to try to assert the semantic fallacy that it's not stealing if no one loses anything.
From m-w.com:
Steal: [...] transitive verb 1 a: to take or appropriate without right or leave and with intent to keep or make use of wrongfully
Appropriate: [...] 3 : to take or make use of without authority or right
One can debate "wrongfully" in some usages of "steal", but in this case I think it's pretty clear it was "Made use of without authority and wrongfully". Thus stealing.
Re:I don't see a decision... (Score:5, Informative)
This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.
Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy [copyright.gov]. In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source. [jw.com]
And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice.
The Federal Circuit and Copyright Law (Score:5, Informative)
This case [uscourts.gov] may not be as strong a precedent as it appears at first glance. Bruce Perens's article, while informative, failed to mention a few important legal details, which I will try to fill in here. Please note that I am not a lawyer, and this is not legal advice.
The Court of Appeals for the Federal Circuit [uscourts.gov], where this case was heard, has a more limited jurisdiction than the regional circuits (1st through 11th and DC). Generally speaking, the Federal Circuit hears cases arising under the patent laws, and it also has jurisdiction over a hodgepodge of federal administrative law issues (veterans claims, the Merit Service Protection Board, certain government contracts, etc). In this case, the appeal was heard by the Federal Circuit because of a tie-in to patent law, though that was not the subject of the appeal.
Why does it matter that the Federal Circuit heard the case? It's important because the Federal Circuit does not set precedents for copyright law. Instead, it relies on the precedents of the regional circuit that would have heard the case were it not for whatever side issue brought it under Federal Circuit jurisdiction. Here, the Federal Circuit used the copyright precedents of the Ninth Circuit because the case originated in the Northern District of California, which is in the Ninth Circuit.
So, this case is really only indicative of what two (of twelve) Federal Circuit judges and one district judge from New Jersey thought the Ninth Circuit would do if the appeal were heard there. It is not binding precedent on the Federal Circuit, nor the Ninth Circuit, nor any other regional circuit. Different circuits often have different interpretations of the law (called a circuit split), which can often only be resolved by a Supreme Court decision. It would not surprise me if other circuits take differing views on the validity or precise nature of open source licenses.
I would not even take this case as saying much about the Federal Circuit's own views. As pointed out earlier, one of the appellate judges in this case is a district court judge who does not normally take part in Federal Circuit cases. I would also point out that the Federal Circuit is known for having a very broad range of judicial philosophies represented on its bench, with judges often writing dissenting opinions in patent cases. There is no guarantee that even another case before the Federal Circuit would come out the same way, especially if it originated in a different circuit.
All is not doom and gloom, however. Courts are notoriously conservative and reluctant to make the first move in a new area of the law. Now that there is something to hook into, it is possible that district courts and other circuit courts will make use of the Federal Circuit opinion as persuasive authority in their own decision making. Just beware that there is no guarantee that will happen.
A Link to an mp3 of the Oral Argument (Score:5, Informative)
Here is a link to an mp3 of the oral argument in this case [uscourts.gov], for the interested.
And here's the website for the law practice of the attorney who represented Jacobsen [vkhall-law.com].
A link to the defendant's attorneys [fieldjerger.com], who notably do not list intellectual property among their specialties. It is arguable that the defendant made a poor choice of attorney for this case.
And finally the Stanford lecturer who was the primary author on the amicus brief in support of Jacobsen [stanford.edu].
How much did this case cost? (Score:2, Informative)
In a timely coincidence, the film Flash of Genius [imdb.com] is opening today. It tells the story of how Ford stole the invention of the intermittent windshield wiper from Dr. Robert Kearns, and how Kearns fought back (at considerable personal expense).
We also know that RCA and David Sarnoff stole the basic invention of television from Philo Farnsworth. It took more than 10 years for Farnsworth to win the right to royalties for his invention. Aaron Sorkin wrote a play, "The Farnsworth Invention" [playbill.com], based on this story.
Re:I'm trusting the summary this time (Score:5, Informative)
The court here is simply being asked to determine whether violating an open source license agreement constitutes copyright infringement. If it does, then the trial court can enjoin the defendant from infringing. If it doesn't, then the defendant's remedy is seek damages under contract law. If damages are his only remedy, however, then the court isn't supposed to grant injunctions. Even if the trial court had been upheld, that doesn't mean that open source licenses would have been invalidated, just that violating the terms of the license didn't infringe a copyright, but rather a contract.
Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights. The appellate court disagreed, and explicitly recognized that an open source licensor does gain an economic benefit from releasing open source software, in terms of such things as better reputation, business opportunities, and the improvement of the released software. The main point of the opinion is therefore that going beyond the terms of the license is a copyright violation, and therefore all the legal remedies for copyright violations are available.
Re:Finally! (Score:3, Informative)
If you read a couple of details, you'll see that the bad guy here did the following:
a) incorporated source code written by the good guy into his product
b) patented it, and claimed it was his own work
c) sent a $200,000 bill to the original author for "infringing patents"
Whether they are both small fish or not is irrelevant, what this preliminary decision does is ensure that if you release your software under an open source licence that your hard work is protected and not free and easy pickings for the fastest sleazeball to the patent office, who is in front of you in line to file a patent on your work because he spends his time stealing code instead of writing it.
Thanks to this decision, you can't claim that free software licences are invalid and that code out there under those licences is public domain and free to take with no consequence.
Re:Open source people are greedy too. (Score:5, Informative)
The GPL *specifically* says you can sell it. Check section 1; "You may charge a fee for the physical act of transferring a copy." It says NOTHING about 'breaking even' on CD-R.
Was it really so earth shattering? (Score:5, Informative)
Re:I'm trusting the summary this time (Score:5, Informative)
That's a huge victory. The license on distribution of things like the GPL is based on copyright. Damages aren't really the issue; people releasing something under GPL probably aren't in it for the money. Yes, damages can have a putative effect, but not explicitly and the offending entity doesn't have to stop.
The goal is to get them to stop breaking the terms of the license and release their source code (and otherwise comply). You can't force that without an injunction, if the offending party is willing to pay.
As far as the summary, it's not incorrect, just not including the details of how the ruling enhances the 'protection of open source developers' (by allowing injunctions and other copyright-infringement remedies)
IANAL, but feel like one in my armchair :). Please correct me if/when I'm wrong, but don't be an ass - I appreciate my understanding being improved, and you don't need to insult my intelligence. Thanks...
Saving Open Source (Score:1, Informative)
Michael Swaine has published a very interesting article on the Jacobsen v. Katzer case over at http://www.ddj.com/linux-open-source/210604978
Re:Open source people are greedy too. (Score:2, Informative)
Re:Open source people are greedy too. (Score:3, Informative)
> But copying, where the original owner still has a perfect and fully functional object.. is different.
Ah, but in this case, they didn't just copy it, they _patented_ it.
Contrary to popular believe, it is possible to steal IP rather than merely violate a legal stature (copyright, patent, etc.). While a copy is nothing more than a copy (and therefore only implies a loss of possible revenue rather than actually monetary loss), the right to produce those copies is a unique 'item' that has real value. If someone takes it, it's not yours anymore and they therefore stole it.
I suppose one could argue that IP isn't "real" because it's just your name on some paper, but then again, what's you deed? And hell, IP ownership is a lot clearer than, say, ownership of my wallet, as, after all, who's to say it my wallet anyway? It could be in my pocket 'cause I just stole it.
Point being: Don't confuse violation of IP rights (e.g. copying) with true theft of IP (a fraudulent patent in this case).
Re:Look more carefully (Score:3, Informative)
Yes, lack of ability to distribute would suck too, but it's by no means the same thing.
Re:This is the first I have heard of this case (Score:1, Informative)
It's worse than that. Katzer (the IP thief) sent messages to Jacobsen's employer to try to get him fired from his job as a known code thief for stealing Katzer's code (the code Jacobsen originally wrote). When Jacobsen applied for a cease and desist, Katzer invoked California's anti-SLAPP law and the judge fined Jacobsen something like $40,000. That was the start of a series of rulings against Jacobsen leading to the ruling that all open-source licenses are unenforcable because the product is not sold for a profit. This finally got overturned by a higher court in the ruling which is being treated as a victory here, but the good guys are down something like 10-1.
There was another nasty situation where Katzer bought a domain name that was the name of Jacobsen's project. One of the project's users in return bought a domain name that was the name of Katzer's product. Katzer sued the user and I don't recall the details but it did not end well for the user.
Re:I'm trusting the summary this time (Score:3, Informative)
Yeah and the same for closed source licenses. Big freaking deal.
It is a big deal. Before this many lawyers implied the license agreement had no legal merit and that since the code was freely given, was not subject to copyright protection. Even MS has implied such cock and bull. This cleanly highlights the license is valid and on square footing with more traditional closed source licenses.
So yes, it is a big freaking deal.
Re:I'm trusting the summary this time (Score:3, Informative)
Silly A.C., economics is the study of choices. Money has almost nothing to do with economics.