Forgot your password?
typodupeerror
Software Government Patents The Courts News Your Rights Online

An Open Source Legal Breakthrough 292

Posted by kdawson
from the gpl-means-what-it-says dept.
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."
This discussion has been archived. No new comments can be posted.

An Open Source Legal Breakthrough

Comments Filter:
  • by ccguy (1116865) * on Friday October 03, 2008 @10:21AM (#25246617) Homepage
    And the second link is the reason why.

    Same as going into a morgue usually is a good test for students considering a medical career, this link is a perfect test for lawyers wanna be's.
    • For once, a programmer actually summarized a legal decision more or less accurately, it's quite surprising...
      • by nomadic (141991) <nomadicworld@NOSpam.gmail.com> on Friday October 03, 2008 @11:13AM (#25247329) Homepage
        Actually I spoke too soon, the more I read it the less accurate the summary is. I should have known I was giving a coder too much credit for legal analysis (no offense, coders, but you yell at lawyers and judges for faulty technology analysis all the time). It may be splitting hairs, but the court here wasn't looking at whether open source license provisions were enforceable in general (in fact both parties seemed to recognize that they were), but whether violating those terms falls under copyright law protection.

        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.
        • by Sloppy (14984) on Friday October 03, 2008 @11:43AM (#25247731) Homepage Journal

          Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights.

          That court has lost its way, and the appellate court's decision doesn't really correct it (though it certainly helps Jacobsen's case).

          Copyright law is meant "to promote the progress of the arts and .. sciences." Anyone who looks at it in economic terms only, ignores an entire spectrum of human motivation, of which economic advantage, while important, is merely a part.

          People sure as hell don't acquire things (e.g. train control software) for economic reasons ("ooh, my model train is now more efficient; I can finally crush my play-freight-delivering competitors!"), so why would economic reasons be the only motivation for producing things? It's absurd. It's also something any amateur programmer -- no, actually, any hobbyist in any field whatsoever -- would trivially understand.

          • by Anonymous Coward on Friday October 03, 2008 @12:23PM (#25248299)
            Your concept of economics is insufficiently broad. Anything that people enjoy or appreciate in any form has real economic value.
          • by Registered Coward v2 (447531) on Friday October 03, 2008 @12:23PM (#25248301)

            Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights.

            That court has lost its way, and the appellate court's decision doesn't really correct it (though it certainly helps Jacobsen's case).

            Copyright law is meant "to promote the progress of the arts and .. sciences." Anyone who looks at it in economic terms only, ignores an entire spectrum of human motivation, of which economic advantage, while important, is merely a part.

            People sure as hell don't acquire things (e.g. train control software) for economic reasons ("ooh, my model train is now more efficient; I can finally crush my play-freight-delivering competitors!"), so why would economic reasons be the only motivation for producing things? It's absurd. It's also something any amateur programmer -- no, actually, any hobbyist in any field whatsoever -- would trivially understand.

            I think you are confusing economic reasons with financial reasons - which are, as you stated, a part of, but not all, of the economic reasons why someone may do somethings.

            Economics looks at why people do things and what benefits they gain from them; and tries to explain the links between the two. It would be pretty dismal indeed if all it looked at were financial causes; in fact some of the best economic research is around behavioral actions that result in non-financial outcomes.

        • by slimjim8094 (941042) <slashdot3NO@SPAMjustconnected.net> on Friday October 03, 2008 @11:51AM (#25247863)

          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...

  • by GlobalColding (1239712) on Friday October 03, 2008 @10:23AM (#25246655) Journal
    Damn good precedent set. Although, the guy who patented the other fellas work and tried to charge him for it should have been clubbed like a baby seal or dunked in a vat of whale spunk.
  • Finally! (Score:5, Insightful)

    by CPNABEND (742114) on Friday October 03, 2008 @10:23AM (#25246659) Homepage
    A decision in favor for those that work for the common good against a single person's greed!
    • by tjstork (137384) <todd@bandrowsky.gmail@com> on Friday October 03, 2008 @10:38AM (#25246845) Homepage Journal

      A decision in favor for those that work for the common good against a single person's greed!

      Not at all. The open source author's assertion of copyright is a form of greed as well. The case here is not one of greed, but of theft. The open source author's property was -stolen- by the other guy.

      • Re: (Score:3, Insightful)

        by MightyMartian (840721)

        I wouldn't go so far as to say asserting copyright is greed, unless you also happen to think collecting a couple of paychecks a month for work you do is also greed. In particular, this guy is basically giving away his work (with some strings attached) by releasing via an open source license.

        But you are right, this isn't so much a victory for open source, as a victory against a thief and a fraud. Even if the guy had released his work into the public domain, no one can simply patent it and then send the ori

        • by riceboy50 (631755)

          victory against a copyright infringer

          There, fixed that for ya. We would have also accepted 'pirate'.

        • by orclevegam (940336) on Friday October 03, 2008 @11:19AM (#25247413) Journal
          Excellent point. TFA also mentions possible perjury charges for filing what he must have known was a fraudulent patent application, deliberately trying to claim a creation date prior to the date of the work he was ripping off, and utterly failing to mention any of the copious prior art. The US patent system (and indeed almost all patent systems) are in shambles and are a complete joke in terms of fulfilling their social promise. Now that this ruling has given the OSS community (and CC as well) some teeth, maybe the *AAs of the world will think twice about pushing to have those particular legal fangs sharpened, and maybe, just maybe we'll see some patent reform as well.
      • Re: (Score:3, Informative)

        by erroneus (253617)

        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: (Score:3, Insightful)

          by Sj0 (472011)

          In this case, it seems like it really was theft, by most definitions.

          The company patented the open source algorithms, effectively stealing the rights to the intellectual property. The original authors were deprived of the use of the code and their rights to the code, until now, where this appeal finally solved the injustice.

      • by illegalcortex (1007791) on Friday October 03, 2008 @11:11AM (#25247295)

        The open source author's assertion of copyright is a form of greed as well.

        That's the most ridiculous thing I've heard all morning, and that includes finding out that this guy tried to invoice the original author.

        You seem to have redefined the word greed. Let me give you a few of the actual definitions:

        "excessive or rapacious desire, esp. for wealth or possessions."

        "An excessive desire to acquire or possess more than what one needs or deserves, especially with respect to material wealth"

        "1. excessive desire to acquire or possess more (especially more material wealth) than one needs or deserves
        2. reprehensible acquisitiveness; insatiable desire for wealth (personified as one of the deadly sins)"

        Note the bolded words. The whole point of greed is that it is an extreme. Jacobsen is a model train hobbyist. He wrote some software to control model trains and gave it away free. Not only that, he took the copyright that the law gives him for such software and gave up any ability to make money off it by releasing it as GPL. In addition to that, he's not acquiring money. That's like saying that someone pointing and saying "see that free mural? I painted that" is greed. That you could someone reinterpret this as greed is mind boggling. The only reason I wouldn't say you deserve Jacobsen an apology is that he probably never read your comment.

        • by PunkOfLinux (870955) <mewshi@mewshi.com> on Friday October 03, 2008 @11:28AM (#25247545) Homepage

          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.

        • Not only that, he took the copyright that the law gives him for such software and gave up any ability to make money off it by releasing it as GPL.

          *facepalm* Have you actually read the GPL?

          Does the GPL allow me to sell copies of the program for money? Yes, the GPL allows everyone to do this. The right to sell copies is part of the definition of free software. Except in one special situation, there is no limit on what price you can charge. (The one exception is the required written offer to provide source code that must accompany binary-only release.)

          http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLAllowMoney [gnu.org] Next time please do the two seconds of research it would take to not look like a complete dumbass.

      • Re: (Score:3, Insightful)

        by CodeBuster (516420)
        copyright and patents are limited exclusive rights granted by the government, but they are NOT the same thing as property in sense of real or physical property and thus cannot be "stolen" in the same sense that an owner can be deprived of physical property. The laws concerning property and those concerning copyrights, patents, and other grants of exclusive rights are entirely separate branches of our laws and are not covered under the criminal codes (although some copyright infringement is criminalized in s
      • I'd like to hear you explain this assertion a little more:
        The open source author's assertion of copyright is a form of greed as well.

        It seems like the copyright holder claimed copyright to keep from being charged for his own work (i.e., to ensure that his own work was kept free as in beer and speach). How is this greed?
      • It's greedy to want to be able to give away for free code that you developed yourself so that others may use and modify it as they wish?!?! That's patently absurd.

        How do you know what Jacobsen's motivations were? He *might* have wanted to develop the code so that people would admire his l337 c0d!ng skillz, but he might simply have seen a need and wanted to fill it. By standing up to Katzer, he may have been standing up for all of the others who were using his code under the terms of the open source li
    • Re: (Score:2, Insightful)

      by LWATCDR (28044)

      "A decision in favor for those that work for the common good against a single person's greed!"
      Dude it is software for controlling toy trains.
      Yes I am glad that this guy got busted but lets put this into perspective. This was a little guy fighting a little guy. Good that he won but not some epic battle of good verses evil.

      • Re:Finally! (Score:5, Insightful)

        by Spy der Mann (805235) <spydermann.slash ... m ['ail' in gap]> on Friday October 03, 2008 @10:50AM (#25247005) Homepage Journal

        Yes I am glad that this guy got busted but lets put this into perspective. This was a little guy fighting a little guy.

        And the victory sets a precedent against the big guys.

      • by Bragador (1036480)

        And why would that make it less "epic"?

        Softwares, lines of codes, are what will control the whole world in the future, and that is if it's not already the case.

        If open-sourced code for a puny train must stay legally open-sourced, then all open-sourced code must stay open-sourced... including the most important applications that exist and those yet to come.

        That train, my good friend, is the train leading us to freedom!

        • by LWATCDR (28044)

          I am already free.
          I don't worry about people abusing the GPL. In this case the guy was a total crook and I am glad he was taken down.
          I am very tired of people throwing around freedom like that. Most of them have never written a line of code at all much less put any in a GPL project.

      • Re: (Score:3, Informative)

        by jo_ham (604554)

        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 fastes

        • 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.

          You couldn't do that before, either.

    • Re:Finally! (Score:5, Insightful)

      by MightyMartian (840721) on Friday October 03, 2008 @10:39AM (#25246865) Journal

      I'd say, from a cursory look, it's also a victory against patent fraud, because that's precisely what this guy did.

  • profit lost (Score:5, Funny)

    by Shinatosh (1143969) on Friday October 03, 2008 @10:31AM (#25246757)
    1, wait for some guy to code something cool
    2, In all .c and .h files do a "s/guys name/my name/g"
    3, relase as closed source application
    4, PROFIT!!

    Oh, wait... It does not work anymore?

    Well I hope all copying, greedy suckers will learn the lesson!

    Cheers
    • Re: (Score:3, Funny)

      by Steve Baker (3504)

      That's what the bad guy in "Tron" did. As we learned from that movie, all you need to counter this is a printout of the original header with your name on it stating the bad guy stole it.

      The hard part of course is being digitized, joining the program resistance movement, fighting the Master Control Program and opening the data ports to the User to get that printout. That part is a real bitch.

  • by Daniel Dvorkin (106857) * on Friday October 03, 2008 @10:37AM (#25246839) Homepage Journal

    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.

  • by ruin20 (1242396) on Friday October 03, 2008 @10:39AM (#25246871)
    Maybe I'm just missing something but I don't see a decision. The preliminary ruling states that it's going to Dismiss in part, but not in whole the case.

    However, it's missing key details, like will the plaintiff need to open his source code, will there be damages paid to the defendant due to the costs and burdens placed on him to defend a false complaint?

    Can someone enlighten me to this please? This would be a hollow victory indeed if the court did not force the commercial software using open source to comply to the distribution guidelines in the distribution agreement. If they don't, isn't this just the invalidation of a patent do to examples of prior art?

    • by Zordak (123132) on Friday October 03, 2008 @10:56AM (#25247103) Homepage Journal

      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.

      • Additionally, the Fed court validated that "economic consideration" extends well beyond just cash. I think that's just as big an element as the condition vs. covenant item, because without consideration, there is no contract.
      • Mod parent up.

        I (for whatever reason) have a couple of authors (as in, putting words on dead trees) that publish small-press. I am perpetually amazed at how many of them don't register their copyright, and believe that they are covered simply by doing the whole "put it in an envelope and mail it" thing or some other novel approach that, should it come to lawsuit time, will only nominally demonstrate when it was written in a fashion that may be subject to debate in a courtroom.

        I got in heated arguments with

      • OK, you're not my lawyer, and this is an explicit waiver of all responsibility for the results of any actions I may take based on any further communications between us on this subject in this forum.

        I don't know how else to say "I'm not paying you so can I please just ask a question and not get hedge answers. I promise not to sue." Is there a standard clause that covers our non-relationship?

        Anyway, it's my birthday and I'd kind of like to register a copyright for a program I've written. Thanks for the lin

    • by gnasher719 (869701) on Friday October 03, 2008 @11:17AM (#25247389)

      Maybe I'm just missing something but I don't see a decision. The preliminary ruling states that it's going to Dismiss in part, but not in whole the case. However, it's missing key details, like will the plaintiff need to open his source code, will there be damages paid to the defendant due to the costs and burdens placed on him to defend a false complaint?

      The appeals court cannot itself make decisions; but it can write down what decisions the lower court should make and why and send it back to the lower court. And the lower court better follow that friendly advice or else...

      In this case the friendly advice of the appeals court is that taking code that is under an Open Source license, and redistributing it without following the terms of the license, is copyright infringement. And we recently learnt that the penalty for illegally copying 24 songs, each worth about $0.99, carries a penalty of $220,000. So I'd say that Mr. Jacobson has this pleasant Mr. Katzer firmly by the balls. Mr. Katzer is under no obligation to open his source code although only that might allow him to legally sell his software in the future; it won't fix any past copyright infringement. And this is obviously a case where in Mr. Jacobson's place I would go and try to inflict maximum damage.

  • Man, Bob Jacobsen is fighting the good fight. If anyone has earned respect, he has.
    • Even with lawyers donating their time and support from open source advocates this must of still cost him a lot in stress, time, money, reputation, hassle and general time lost.

      For sticking to his guns and seeing this through he deserves a medal! or at least some public recognition over and above what he will get from /. and the net in general.
  • by Drakkenmensch (1255800) on Friday October 03, 2008 @10:44AM (#25246927)
    Further cases involving open source code used in works later patented will refer back to this one. A landmark is always a good thing to have on your side.
  • I agree with the decision, I welcome it entirely.

    However...

    The case hasn't generated as many headlines as it should.

    Yeah, people in general don't care. This is a trivial detail to the world at large. The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans. Thus the reason that Open Source, Free Software, whatever, while indeed meritorious for its ideals, will never gain widespread acceptance based on them.

    • Yeah, you hardly ever see open source software out there. No one uses it, and no one puts it in their proprietary software distributions...

      Oh wait, they do...

      Just because Joe Six Pack doesn't know a damned thing about open source doesn't mean it doesn't matter to them. Just look at the untold millions that Microsoft has expended attempting to destroy it.

      • by Blakey Rat (99501)

        Just because Joe Six Pack doesn't know a damned thing about open source doesn't mean it doesn't matter to them. Just look at the untold millions that Microsoft has expended attempting to destroy it.

        Are these two sentences supposed to relate to each other in some way? I mean, why does "Microsoft spending money fighting X" interest Joe Six Pack in any way, shape, or form? I'm not following the logic here.

      • That F/OSS is widespread and that it didn't get that way based solely on being Free or Open Source are not mutually exclusive ideas.

        Most of the Free and Open Source software that has become widely used got that way by being good software with a low price tag (often, but not always, zero).

        The freedom to redistribute altered code doesn't make an impact on people who had no plans to do so anyway. The fact that the software is cheap and good because other people did care is what matters to users who are not dev

    • by RAMMS+EIN (578166)

      ``The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.''

      A vanishingly small percentage of humans that nevertheless seem to be bringing about a revolution of sorts. It used to be that companies and governments bought proprietary software or wrote their own. Now companies are grabbing open source software where they can, governments debate about open source software, and, in some places, having the source code available is starting to become a requi

      • Now companies are grabbing open source software where they can...

        Yes. Because it's free (as in $0). There's no more to it than that. As much as open source advocates like to believe otherwise, people just don't give a damn about having access to the source code. Not having to pay for it, on the other hand, is great.

        • Price is surely a big part of the decision making process for any business, but it's definitely not the only part. Another very real reason that I see every day is the desire to avoid vendor lock-in. If a piece of software is open source, and the developer(s) decide to abandon the project, you can always branch the code and bring it in-house. If you went with a closed source vendor, good luck getting the source if the vendor decides to stop supporting that version of the software!

    • See, I think there's a different reason that this doesn't get mainstream coverage. Go ask your most computer illiterate family member if they think someone should be able to take my work that I posted for everyone to use, patent it, and then bill me for using it in my own projects. I think everyone will agree that if that's the way the law works, then the law is retarded. It doesn't get coverage because everyone assumes that the world already worked this way.

    • The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.

      How do we know this? I can see people not (directly) caring whether they can modify the software they use (heck, I usually don't care directly, because switching to something else would be easier than learning the codebase to fix it), but how in the world could they not care whether they can, um, use it? It's not like people buy/download software to just set it on the shelf and forget about it.

  • by erroneus (253617) on Friday October 03, 2008 @10:52AM (#25247023) Homepage

    That is a TRULY balzy thing to do -- use open source, patent it and send bills for payment to the original author for patent infringement.

    This is a wilful abuse of all sorts of systems... the patent system, copyright and the legal system. A person like that needs to be billed for all the time he wasted in the government and then barred from participating the in owning patents or copyrights.

  • by Grond (15515) on Friday October 03, 2008 @10:56AM (#25247107) Homepage

    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.

  • by Grond (15515) on Friday October 03, 2008 @11:08AM (#25247251) Homepage

    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].

  • From following the second link and looking at all of the legal filings, it appears that Jacobsen, as plaintiff, easily incurred more than $100K in legal fees in trying to assert ownership of his own work. Did those funds come out of his own pocket? If so, how many of us could afford to take on a similar fight to protect our own work?

    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

  • The case hasn't generated as many headlines as it should.

    Someone patents someone else's work and violates their copyright, and we expect massive headlines instead of a quiet smackdown?

  • I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.
  • An appeals court has erased most of the doubt around Open Source licensing, permanently

    Bull. Even Supreme Court decisions can rarely reasonably be interpreted, without some historical perspective, as doing anything permanently, but describing a mere intermediate appellate court decision this way is sheer spin and hyperbole.

  • From the article:

    Contrast that to what the defendant in a suit brought by the holder of a bogus patent faces: between $3 and $5 million dollars in legal fees per case.
    Without the beneficent legal team that came to Jacobsen's aid, winning such a case is so expensive that it's really losing.

    While Perens is right to be excited about this baby step, bogus lawsuits are still a pretty worrisome problem. In most cases, no beneficent legal team will come to your aid. Broadly, this has little to do with software -- Microsoft could sue some random person out of the phone book if they wanted exclusive use of his name for their next product. But the risk is obviously much greater if you develop software (free or otherwise). The shallower your pockets, the greater the risk.

  • ... and apply it to anything that can be used and so long as what you wrote doesn't break some other law, its binding. Basic Business Law 101.

    How this judge came to the opposite conclusion is good reason to question the judgments the judge has made on all other cases he has prevailed over.

  • by deblau (68023) <slashdot.25.flickboy@spamgourmet.com> on Friday October 03, 2008 @02:17PM (#25249785) Journal
    I've written a short article discussing this opinion here [bromsun.com] [PDF warning]. It's a good start, but there's a long way to go.

Pound for pound, the amoeba is the most vicious animal on earth.

Working...