An Open Source Legal Breakthrough

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."

I'm trusting the summary this time

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.

Re:I'm trusting the summary this time

For once, a programmer actually summarized a legal decision more or less accurately, it's quite surprising...

Re:I'm trusting the summary this time

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.

Re:I'm trusting the summary this time

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.

Re:I'm trusting the summary this time

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...

Wow a truly profane injustice defeated.

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.

Re:Wow a truly profane injustice defeated.

dunked in a vat of whale spunk.

According to the best research I can find in as much as I dared:

1. A vat can have up to 3000L capacity [wikipedia.org]
2. A whale's average load is about 5 gallons, or ~19L [about.com]
3. That means about 158 "fun times" to fill the vat.
4. Even though a whale can make waves multiple times per day, let's put a practical limit of 8 times.
5. Thus, you'd need about 20 whales to achieve your vat in a day. (Assume you want fresh whale woohoo. Day old might be okay for the purposes of ickiness, but dunking might become difficult over time as it congeals)
6. Given that you won't want to lose a single drop of the deep ocean geyser to the open waters, this'll be done on land, and manually since whales can't reach otherwise.

That's a lot of Shamu Shucking! Not impossible, mind you, but challenging. You'll need a good team with strong muscles, good aim, and earplugs so they aren't driven mad by the cacophony of "ooOOOo" caused by the whalegasms. You'll also need to ensure that the whales are either sufficiently into this, or you have a good supply of whale porn on hand.

And when you're done, if you haven't found some way to make enough money off this so you'll never have to work again, then you aren't trying hard enough.

Re:Wow a truly profane injustice defeated.

"or dunked in a vat of whale spunk."

That's what I get for slacking off on /. when I'm supposed to be working. Thanks :(

No *that's* what you get for choosing to work at Whale Spunk Wholesalers, Inc.

Re:Wow a truly profane injustice defeated.

You think Production is bad, get a job on their QA team...

Finally!

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

Re:Finally!

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

Re:Finally!

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.

Re:Open source people are greedy too.

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.

Re:Open source people are greedy too.

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.

Stole freedom.

But he didn't -lose- anything

Yes he did, he lost his freedom. The other guy tried to derail his project. The grant of an open source license does not mean that that is the only license that you grant. You can have multiple licenses out there.

It's pure theft, this case, pure and simple.

Re:Stole freedom.

The GP is right, it's not theft. The ruling sets forth that violating a open source license revokes that license, and that subsequently distributing software using that licensed work is therefore done without a license and is a case of copyright infringement. As such, this guy is committing copyright infringement against the developers of the software he's using. That's not theft, it's copyright infringement, and there is a difference.

Of course, there's also the patent issue coming up here and that's a whole other can of worms. Maybe we'll get really really lucky and this whole thing will somehow invalidate software patents as well, but somehow I doubt that's going to happen.

Re:Stole freedom.

I am not sure if it's theft in a legal sense, but by trying to shut down the source of the code, it is a form of theft. The whole premise of "copyright infringement isn't theft" is based on the fact that the source hasn't actually been deprived of anything. The asshole who patented his software was trying to get rid of the source by abusing patent law. When I lose my own code by abusive legal action that leaves the only legal holder as the abuser, that is theft. I have lost what he has gained through his actions.

Re:Open source people are greedy too.

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.

profit lost

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

Don't break out the champagne yet

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.

This is the first I have heard of this case

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.

The Federal Circuit and Copyright Law

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

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].

Was it really so earth shattering?

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.

Re:I don't see a decision...

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.