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Open Source

Copyright Protection Problems For OSS Project 390

Posted by ScuttleMonkey
from the copy-wrong dept.
An anonymous reader writes "There's a federal case in the Northern District of California where copyright for open source is being challenged. The free software project JMRI discovered that a commercial company was using some of their files in a product, in violation of the license. They added a copyright claim to an ongoing legal action about cybersquatting, software patent abuse, etc. The patent case was covered on Slashdot back in June but the copyright part is new. The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"
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Copyright Protection Problems For OSS Project

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  • by transporter_ii (986545) * on Monday November 13, 2006 @08:24PM (#16832364) Homepage
    Does something go into public domain just because it is posted somewhere for free (example: Usenet):

    False. Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain(*). Explicitly, as in you have a note from the author/owner saying, "I grant this to the public domain." Those exact words or words very much like them.

    See Also: Out of Germany, but even someone like D-Link couldn't shake the GPL:

    "The GPL Violations Project [gpl-violations.org] , based in Germany, have won (subject to appeal) a court case against D-Link, who had allegedly distributed parts of the Linux kernel in a product [gpl-violations.org] in a way which contravened the GPL. D-Link had claimed that the GPL was not 'legally binding' but have now agreed to cease and desist, and refrain from distributing the infringing product, a network attached storage device. Expenses, including legal expenses, were received by the plaintiffs; they did not request any damages, consistent with their policy [gpl-violations.org] . They have previously won a number of out of court settlements against other companies. Slashdot has previously mentioned the GPL Violations Project [slashdot.org] ."
    • by transporter_ii (986545) * on Monday November 13, 2006 @08:29PM (#16832422) Homepage
      False. Nothing modern and creative is in the public domain anymore unless the owner explicitly puts it in the public domain(*). Explicitly, as in you have a note from the author/owner saying, "I grant this to the public domain." Those exact words or words very much like them.

      Of course, to give credit, that came from:

      10 Big Myths about copyright explained
      http://www.templetons.com/brad/copymyth s.html

    • by Software (179033) on Monday November 13, 2006 @09:01PM (#16832700) Homepage Journal
      I hate to break it to you, but the lawyers are not claiming that JMRI's software is in the public domain. They're claiming that the violation was not one of copyright, but one of licensing. From http://jmri.sourceforge.net/k/docket/100.pdf [sourceforge.net] (PDF warning; see page 13):

      "Generally, a copyright owner who grants a nonexclusive license to use his copyrighted material
      waives his right to sue the licensee for copyright infringement and can only sue for breach of
      contract." Id. (citing Graham v. James, 144 F.3d 229, 236 (2nd Cir. 1998)).

      Not that I agree with this argument, but it's what they're making. They're not making an argument that the software is public domain. In fact, the phrase "public domain" does not appear in the filing.

      The filing also references Sun v Microsoft. It's also interesting because if you successfully apply this argument to other software, you would be immune from prosecution for running a warez site, though you'd still be on the hook for contract violation. IANAL, of course.
      • by WolfWithoutAClause (162946) on Monday November 13, 2006 @09:20PM (#16832844) Homepage

        But the counterargument is that since they're self-evidently not following the terms of the license, then they don't have a binding contract, hence we're back to a copyright violation.

        So, prediction: they're going to lose.

        • by QuantumG (50515)
          Yeah, I'm not sure they need a contract. If I receive the software from you and you receive the software from the licenser, then you might have a contract with the licenser, but I don't. If the licenser wasn't making an exclusive agreement with you and gave you redistribution rights, then I've done nothing wrong, you've done nothing wrong and I'm in no way bound by any contract you might have with the licenser. Look, let's put it another way. Say you bought a copy of Redhat Linux. You signed a contract
          • by dhasenan (758719) on Monday November 13, 2006 @10:14PM (#16833264)
            The RedHat support contract probably limits transfers and precludes sublicensing. The GPL, on the other hand, requires that you use the GPL in all derivative works and whenever you redistribute a GPL work. A support contract refers to a service; the GPL, to a text. They're largely incomparable.
          • by drakaan (688386) on Monday November 13, 2006 @10:15PM (#16833276) Homepage Journal

            They absolutely need to agree to a license [fsf.org] (not sign a contract) to use the software. The terms of the license say that you have the traditional rights granted by copyright (which means you're not allowed to copy someone else's original work), but that *if* you comply with the terms of the license, they'll grant you the right to redistribute, modify, etc.

            One of the conditions in the terms of the license is that you aren't allowed to *change* the terms of the license in a number of ways. If you do, then those rights are rescinded, and you go back to only having the rights granted under copyright law (which means, you have to ask my permission to do anything with it).

            You said (in part):

            "...If the licenser wasn't making an exclusive agreement with you and gave you redistribution rights, then I've done nothing wrong, you've done nothing wrong and I'm in no way bound by any contract you might have with the licenser..."

            You're bound by the terms of the license that the software is distributed under. The person who distributed the software to you did so with the knowledge that there were certain things that had to be done to be in compliance with the license. One of those things is to make sure that the license is distributed with the software, so that it's clear what's allowed and what's not.

            If you received the software without the license (i.e. the person who distributed it failed in their duties to comply with the licensing requirements), then that doesn't mean you are allowed to ignore copyright law or that your copy is magically license free. Just ask the folks at the BSA about that. Millions of illegally-licensed copies of Windows are installed and used every year, and there are very real penalties for knowingly doing so.

            You also said:

            "...You signed a contract with them to receive support. If you were to give me a copy of your software, that wouldn't entitle me to receive support, would it?..."

            If the contract was for support, then they paid for support. The license is a separate thing...it covers under what conditions you may use the software under, not whether you will receive support.

            You mentioned that you wouldn't be bound by that agreement (the support one) any more than redhat would be bound to give you support. True, since you didn't enter into a support contract with them (although you could do so very easily). You then mentioned that:

            "...It's clear that I can have a license to distribute Redhat Linux but not be bound by any contract to Redhat..."

            This almost true, since you would be bound by the terms of the license of the software you received, not by a contract signed directly with a particular company or person. Traditionally, copyright was the only legal condition allowed for distributing a work, but the GPL is becoming common, and allows more freedom. The GPL says (in part):

            5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

            The only reason you are *ever* allowed to redistribute is because of the license. If you don't accept the terms of the license, there isn't anything else that magically gives you distribution rights. It doesn't matter if you got it direct from RedHat, or from some guy in a van behind a seedy building, the only rights you have are copyright and the license the work is distributed under. Copyright gives you certain fair-use rights, none of which would apply to you distributing someone else's software.

            • Re: (Score:3, Informative)

              by MartinG (52587)
              You said:

              They absolutely need to agree to a license (not sign a contract) to use the software.

              The GNU GPL says:

              Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted

              So you do NOT need to agree to ANYTHING to USE the software. The GNU GPL (as with any other copyright license actually, despite what some would have you believe) applies to copying, distribution and modification only.
          • Re: (Score:3, Informative)

            by NickFortune (613926)

            I'm not sure they need a contract.

            As I understand US law, a licence is contract. A specialised form of contract, but a contract nevertheless.

            If I receive the software from you and you receive the software from the licenser, then you might have a contract with the licenser, but I don't. If the licenser wasn't making an exclusive agreement with you and gave you redistribution rights

            That's not how the GPL licence works:

            5. You are not required to accept this License, since you have not signed it. H

      • by QuantumG (50515) <qg@biodome.org> on Monday November 13, 2006 @09:43PM (#16833040) Homepage Journal
        from http://laws.lp.findlaw.com/9th/9915046.html [findlaw.com]


        Whether this is a copyright or a contract case turns on
        whether the compatibility provisions help define the scope of
        the license. Generally, a "copyright owner who grants a non-
        exclusive license to use his copyrighted material waives his
        right to sue the licensee for copyright infringement " and can
        sue only for breach of contract. Graham v. James , 144 F.3d
        229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa
        Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If,
        however, a license is limited in scope and the licensee acts
        outside the scope, the licensor can bring an action for copy-
        right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d
        1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
        (1999).
      • by jd (1658)
        ...that particular clause is related to the fact that there is no nominal transaction taking place to convey the authority to use from the licensing person or body to the licensee. IANAL, but I believe this is why you get a lot of really strange transactions for a dollar or for a pound, because there needs to be some nominal token of exchange to be a legal exchange. Now, in this case, the license IS a token of exchange, because it can be transferred - and in fact IS transferred whenever someone obtains a co
      • Distinguishment: (Score:3, Interesting)

        A more complete reading of the decision only shows that there are situations with a copyright-associated license where you can only sue for contract violations.... For example, Microsoft's requirement that you can't discuss benchmark results without their permission only classifies as a contract term -- This is because, when I talk about how Access is 10 times slower than YourSql I'm not distributing any MS code, so I'm not violating their copyright.

        The determination in the Sun Vs MS case wasn't that Sun

    • There are actually some exceptions to that, but more or less, yeah.
  • by Frequency Domain (601421) on Monday November 13, 2006 @08:25PM (#16832366)
    It's being given away with conditions. The condition is that you obey the licensing agreement.
    • by dhasenan (758719)
      The software and source code is indeed being given away for free. But that alone doesn't give anyone redistribution rights. You get redistribution rights exactly on the condition that you obey the licensing agreement.
    • Um, no.

      The GPL grants certain allowances of redistribution. It's something like "I'm going to let you download this. I have a copyright on it, though, so you can only give it to others if you follow these rules. If you don't follow these rules, you can't give it to others."
  • Promotional CDs (Score:5, Insightful)

    by MightyYar (622222) on Monday November 13, 2006 @08:25PM (#16832370)
    LOL, now I can sell copies of all those promotional CDs that I got in college!

    I'm pretty sure that this defense won't work.
    • Pfft! That's small time. I'm gonna sell this great software toolkit I just acquired. [slashdot.org]
      • by qbwiz (87077) *
        Just make sure you give the source along with.
      • Actually, that's A-OK for you to do under the GPL. However, as you're not the original copyright holder, you'd have to make the source code available to any of your customers who asks for it.
    • by pegr (46683)
      LOL, now I can sell copies of all those promotional CDs that I got in college!
       
      As long as you didn't install them and invoke the EULA, you sure can. Or are you telling me that you are subject to an illegal EULA you didn't even click-thru? If so, the industry has succeeded in brainwashing you!
      • by MightyYar (622222)
        Well, it was a joke, but...

        Note the word "copies" in my one-liner. You can't sell copies of a CD without express permission of the rights holder, EULA or no EULA.
      • by Al Dimond (792444)
        He can sell the physical CDs, sure. He can't copy the contents and distribute those copies because that's a violation of copyright law. I think the latter is what OP was getting at.
  • by mark-t (151149) <markt@@@lynx...bc...ca> on Monday November 13, 2006 @08:26PM (#16832392) Journal
    Because as far as I can tell there is nothing in the copyright act implies that just because a copyright holder is not making any financial profit off of his work that he in some way forfeits any of his rights as the copyright holder.
    • by SirSlud (67381) on Monday November 13, 2006 @08:45PM (#16832552) Homepage
      It seems to be under the popular assumption that if you don't ask for financial compensation for produced works, you deserve to belong to a downtrodden class of anti-capitalist authors undeserving of the sections of law which were originally created to grant an author the power to dictate the terms of use for his or her work within a limited time frame.

      I'm sure the actual case is more complicated and nuanced that that, however.
  • I can do that too! (Score:5, Insightful)

    by Herkum01 (592704) on Monday November 13, 2006 @08:26PM (#16832394)

    Using their argument, I guess that if the publisher sends me a free book I can make copies. I put my name on as the author and sell too.

    IT'S FREE!

    ANYTHING GOES!

  • There is no way I can see JMRI losing, if the American court system has any integrity left at all. You can't get much more blatantly violating copyright than this. Its outrageous.
    • by lightyear4 (852813) on Monday November 13, 2006 @08:45PM (#16832548) Homepage

      I remember this story when it first came into public light. Given the volume of documentation available via JMRI [sourceforge.net], additionally via groklaw [groklaw.net], and elsewhere, I'll avoid going into specifics, but it was and remains quite clear that JMRI's copyright was being flagrantly infringed by an aggressive and offensive party.

      Please read the brief summary of legal proceedings available here on their site. [sourceforge.net]


      There is no way I can see JMRI losing, if the American court system has any integrity left at all.

      As you'll see, they're not exactly doing too well. This is unfortunate and greatly diminishes my confidence in the American legal system.

      • So if they do loose, someone get a "demo" copy of Katzer's product for free, then strip out stuff and hack it into their own product and sell it. You could use their own winning case as a precedent to defend your actions for stealing their work.
      • by killjoe (766577) on Monday November 13, 2006 @09:27PM (#16832910)
        The american justice system works perfectly for those that designed it. It's a system for and by the rich. The single biggest factor in whether you win or lose a case is how much money you have to spend on it.

        • by Jah-Wren Ryel (80510) on Monday November 13, 2006 @10:45PM (#16833528)
          The american justice system works perfectly for those that designed it. It's a system for and by the rich. The single biggest factor in whether you win or lose a case is how much money you have to spend on it.

          I used to think that a career change from software developer to lawyer would be a fairly easy and natural progression. After all both professions are all about understanding the rules and figuring out the more optimal paths that both follow the rules and produce the desired result. It ought to be a cinch.

          Except for one crucial difference.

          In the software world each code path either works or is broken - there may be multiple paths that produce the same result, but their correctness is black and white. In the legal world, nothing is black and white. What "works" one day, may be broken the next day depending on who the observers are (judge, different lawyers, etc).

          That kind of behavior is so totally effed up from an engineer's perspective that only an insane engineer could ever become a good lawyer. The law is really just a huge collective bong party - everybody toking up and then speculating out loud about their deepest philosophical insights into the universe. It all comes down to how well you can convince other people that the words of the law mean what you want them to mean and not what someone else wants them to mean.

          People all laughed when Clinton (a lawyer, like most politicians) made that statement about "it depends on what the meaning of the word 'is' is" But given the context that the law is all about arguing over the meaning of words, it is perfectly natural that he would say that. Still totally effed up, but in a perfectly natural way.
      • Re: (Score:3, Insightful)

        by dircha (893383)
        The problem in this case is quite clearly a system of justice that imposes an access fee, and a legal system that can not reasonably be comprehended by ordinary people. As you can see in the attorney fees awarded to Katzer against Jacobsen, it is a quagmire. One wrong step and you are out $30,000 to your abuser even when it is overwhelmingly clear to any ordinary person that you are the victim.

        Either you pay the access fee - exorbitant private attorney fees - or you risk going into debt, even when no sane p
    • by tap (18562)
      I doesn't seem possible that they would lose the anti-SLAPP lawsuit, but they did. They can lose this too. Copyright law is different depending on the size of the holder of the copyrights. If massive copyright holder like a record studio thinks their copyrights are getting violated, the FBI investigates. This never happens if an open source project has its copyrights violated.
    • If they lose then that means that all images and text from all websites are free to use whether there is a copyright on them or not since they have been 'given away' to your PC free of charge.

      Apart from that only a dope would rule against JMRI.

      • by aussie_a (778472)
        Don't forget free to air television. Will the MPAA be stepping up to help with JMRI's case? After all, many movies are played on free to air tv.
    • by SpecBear (769433) on Monday November 13, 2006 @09:38PM (#16832996)

      Think of it this way: Internet Explorer is free. Broadcast radio is free. Broadcast television is free. Demo software is free. Lots of newspapers are free. All of these things have moneyed companies behind them that would be completely screwed if the court rules that copyright protection only applies to things that are sold.

      So regardless of whether the court system has integrity or is up for sale to the highest bidder, I think JMRI wins this one.

  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Monday November 13, 2006 @08:27PM (#16832400)
    You can't wave your boobs around from the balcony expecting everyone who looks to toss you some beads. Once you're out there, you're out there and if no one gives you a strand then that's really your own fault for putting yourself on the line in the first place.

    It is kind of weird to expect that someone ought to play your game when you've already given up your whole hand.
    • Re: (Score:3, Funny)

      by Anonymous Coward
      Boy do you sure live up to your nick.
      • by ivan256 (17499)
        I think it would be fun to write a script to emulate BadAnalogyGuy. I bet nobody would notice the difference. Hell, BadAnalogyGuy may already be a script! I think I'll put it on my list of 1,000,000 projects I want to do.
    • Re: (Score:3, Funny)

      by TapeCutter (624760)
      Yes, but this does not give potential bead tossers the right to modify the free balcony boobs with silicon.
  • by Matt Perry (793115) <perry.matt54NO@SPAMyahoo.com> on Monday November 13, 2006 @08:29PM (#16832412)
    The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"

    Your honor, since Star Wars was shown on TV, for free, I had every right to edit in some new scenes and sell it as Matt's Space Adventure.


    Yeah, right. This sounds like the defense of last resort.

    • by SirSlud (67381)
      Tho I agree with your intent, thats not a fair example because you do pay for television via taxes for public broadcast and subscriptions for cable, etc.

      If the case is as simple as, "They showed their hand without being protected by patent, and therefore we can steal it," well, then we have a problem. Software is subject to copyright, even tho you don't spend any money to *anybody* on your behalf who is licensing it. Its not like you're not paying your television companies, who in term pay for licensing the
      • by pegr (46683)
        Tho I agree with your intent, thats not a fair example because you do pay for television via taxes for public broadcast and subscriptions for cable, etc.
         
        No, you pay for (over the air) TV by watching ads...
    • you'd think, but... (Score:5, Interesting)

      by SuperBanana (662181) on Monday November 13, 2006 @09:53PM (#16833110)

      Yeah, right.

      You'd think- but the asshole (Matt Katzer) filed an anti-SLAPP lawsuit in response to a lawsuit seeking him to cease and desist (he was hounding a government research facility that was employing one of the JMRI authors and JMRI had enough)..basically won it, and got over $30K for his attorneys...and that's AFTER their claims for legal fees were determined to be excessive/unreasonable, and reduced!

      He's run out and filed patents for stuff days after someone else announced they developed it...then turned around and demanded hundreds of thousands of dollars in royalties. Made absolutely insane, blatantly false assertations.

      Both his lawyers should be disbarred based on the level of falsehoods present in court filings. EFF, where the hell are you? I'm always hearing about I should donate to the EFF, but I don't see them doing a fucking thing for JMRI to fend off this sleaze.

      • by dircha (893383) on Monday November 13, 2006 @10:53PM (#16833574)
        The "problem" appears to be that Jacobsen represented himself and made legal charges that were technically wrong. I mean, he charged Katzer (KAM) on one count under anti-trust law. Read the judge's order. The issue with justice in our country, in my mind is illustrated here by the fact that Jacobsen is clearly the victim, yet because he did not have money to spend on a lawyer and made some technical legal blunders trying to do it on his own, he ends up getting bent over.

        It's despicable, but that's how justice works in this country.

        We need a system where a guy like Jacobsen here can just go down to the court, tell the judge in plain words what this fucker Katzer is doing to him, and get relief without having to put up big bucks for a lawyer and without facing $30,000 in essentially fines because of a technical screwup that someone without legal training can't be expected to have forseen.
  • by sqlrob (173498) on Monday November 13, 2006 @08:30PM (#16832424)
    I'm sure MPAA, RIAA, ESA, BSA and friends will have something to say aboutthis. Some of their software then gets hit pretty hard (demos aren't copyrighted, snag the code!; MP3s of songs; clips of movies; movie promotional materials on a website...)

  • (free as in freedom). According to GPL, free as in beer does not mean free as in freedom. I know it seems trivial to most of us, but some companies seems to make some confusion....
  • by Weaselmancer (533834) on Monday November 13, 2006 @08:45PM (#16832556)

    The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.

    Copyright is not a guarantee of a revenue stream, or even an implication of one. It's about ownership.

    What you choose to do with that ownership is your own business. Make a fortune, or not. Your copyright, your choice.

    • by Mr2001 (90979)
      It's not even about ownership. You can't "own" a number. It's about the government granting you veto power, for a limited time and in limited circumstances, over other people's speech.
  • This [trainpriority.com] is the program in question that is apparently copying from the JMRI program. Interestingly, it wasn't included on the JMRI page...
  • by Aim Here (765712) on Monday November 13, 2006 @09:07PM (#16832738)
    Whee!

    This case looks like it'll help shut up those morons who think free software licenses (i.e. the GPL) are unenforcable.

    We've had Sitecom's laughable 'exhaustion of rights/first sale' argument thrown out of court in Germany.

    In another German case, D-Link tried to claim that the GPL was invalid, therefore they had a right to use GPL'ed code as if it was public domain. That didn't get them anywhere.

    And Daniel Wallace has been slapped eight ways to Sunday in two court cases (one of them being taken to appeal) for attempting to claim that the GPL violated the antitrust laws. Impressively, he spurred three different judges to each give a ringing endorsement to the GPL, one of them going so far as to refer to Linux as 'GNU/Linux' exclusively throughout his final ruling!

    Now here, the defendant is mirroring a common anti-GPL troll, by claiming the Artistic License is a contract, not a license, and that code given for free on the internet is public domain. He's going to lose of course, and the precedent will almost certainly apply to the GPL when he does.

    Now all we need is for some kook to try claiming that the GPL, or some other similar license, is preempted by the US constitution (You still there, SCO?), and that's pretty much all the standard anti-GPL attacks exhausted.

    Looks like free software's legal foundations are being solidly built as we speak...
  • by iamacat (583406)
    Now there is no copyright on free downloads such as Windows update, Sun's Java and songs downloaded during Napster trial - or for that matter any trial/update software.
  • by Rinisari (521266) on Monday November 13, 2006 @09:14PM (#16832792) Homepage Journal
    I don't know how well it would apply to software, but there is an established precedent in publishing that says it is illegal to steal things that are offered for free. An example of this would be taking an inordinate amount of free newspapers from the stands.

    While those copies are being offered for free, they were not produced for free. This is why so many of such free papers now bear a label similar to "Take one, if you want more, contact the editor."

    In the software world, the open source plaintiffs could argue that, while their product is offered for free, it was not produced for free. That, and the license under which the defendant agreed to use the software specifically states that they must follow the terms of the license in order to use the software.
    • You can't take a free newspaper and then turn around and resell it to someone else for $.25 a copy, either.
      • by Mr2001 (90979)
        Of course you can. What law would you be breaking by taking a newspaper--a physical object--off the stand for free and then selling it to someone else for 25 cents?
  • by Stephen Samuel (106962) <samuel&bcgreen,com> on Monday November 13, 2006 @09:18PM (#16832830) Homepage Journal
    I'm pretty sure that SCO flew an argument like this early on in their IBM litigation. They're still waiting for the foot-shaped bruise on their butts to fade. Among other things, the Copyright Act apparently explicitly allows a copyright owner to trade access to their material for copyright material of the recipient -- which is precisely what the GPL does.


    This half-assed defense also presumes that money is the only legitimate cause of action in the courts.
    Rong.

  • People with means and money steal from those who do not, with blatant disregard of laws which they would use in a heartbeat to protect themselves if the tables were turned. In the Quick Overview on the JMRI home page it is stated that, not only is Katzer using JMRI's software without giving them due credit, but Katzer is attempted to obtain money per copy from JMRI for the distribution of their own code using a patent to show ownership while completely ignoring the prior art. According to the JMRI website
  • by Anonymous Coward
    The most worrying part here is that the anti-SLAPP lawsuit won.

    Hello!?!? This alone stands to kill any and every small Open Source project in California. I know of a few here, in Silicon Valley no less.

    Could someone with a legal background (or even reasonable knowledge here) please explain how this could possibly happen, and what defense on Open Source project has!?!?!

    Thanks.
  • The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'


    a.k.a. "Yer honor, I couldn't possibly have raped that woman, because she's a slut who gives it away for free"

  • Who they are (Score:4, Informative)

    by loconet (415875) on Monday November 13, 2006 @09:27PM (#16832908) Homepage
    Here is a bit of background information on the company using this Chewbacca style defence.

    KAMIND Associates [kamind.net] delivers Microsoft solutions for small business customers. We use a standards methodology in understanding our customer's needs. Our policy is to evaluate the customer requirements and generate a phase plan of action that details the work needed to accomplish the task - fully disclosing all problems and issues.

    As part of our service model, we work with customers to develop an integrated IT services plan that solves the customers need and results in long term bottom line savings.

    As a locally own small business owner, we are very much aware of the cost of an improper IT solution that does not deliver the productivity gains expected. Our phased approach for small business is a win-win business model. Our customers win by having an efficient solution for the their problem, and we win by delivering the solution on time, on budget and on schedule.

    KAMIND Associates specializes using Microsoft technologies for commercial and retail market. These areas of include.

    I would personally stay away from any company whose management cannot understand basic copyright regulation and attempts to defend itself with such a nonsense argument as "the software is being given away for free".
  • Pro Se (Score:2, Funny)

    by Eric Damron (553630)
    "The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"

    From that statement I assumed that this is a Pro Se case then I went and read the article. I think the defendant needs to get another lawyer because his current one is fucking stupid.

    Just because you include the source code in no way nullifies your copyright. IANAL but even I know that much. The fact that the user accepted the license testifies to the fact that he ackn
  • EFF? (Score:5, Insightful)

    by macdaddy (38372) on Monday November 13, 2006 @09:56PM (#16833138) Homepage Journal
    Where the hell is the EFF in all of this? What are my dues paying for if not to take on easy but important cases like this one? These people need some compotent lawyers on their side or this is going to end up in a bad way.
  • by Guppy06 (410832) on Monday November 13, 2006 @10:02PM (#16833182)
    "The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'""

    Have you ever seen milk come out of a judge's nose?
  • by dircha (893383) on Monday November 13, 2006 @10:32PM (#16833414)
    If you read the news on the site as well as the judge's order, you see that JMRI contributor Jacobsen brought Katzer and his company KAM to court in an effort to stop him from harassing Jacobsen at home and at work and from continuing to send and demand payment of bills in excess of $200,000 for imagined patent royalties for the distribution of open source JMRI.

    Because Jacobsen basically made the wrong technical legal charges in an effort to gain relief from Katzer's false accusations and harassment, Jacobsen, the open source developer, ended up being forced to pay Katzer approximately $30,000 in legal fees.

    It appears that Jacobsen represented himself.

    Now, this situation in itself is deeply disturbing. Jacobsen apparently did not hire a lawyer, and what is disturbing is that he should NOT have had to hire a lawyer in order to get relief from bullying by Katzer and his corporation that was already interfering with Jacobsen's personal and professional life. Because he thought justice would be done for the little guy if you are just honest, he made charges that were technically wrong. An honest mistake. A technicality.

    In the case of a private citizen against a corporation (KAM in this case), justice must not come down to whether the citizen dots his 'I's and crosses his 'T's. Justice must not be dependent upon the citizen's economic means. In this and many cases it clearly was. The legal system through which we must rely for relief from injustice such as this is truly a quagmire as we can see in this case by Jacobsen, clearly the victim, being forced to pay legal fees to a corporation because of a technicality.

    Do you realize it is illegal in most states for an ordinary citizen to read try to help another citizen by answering questions about what a law even means - for attempting to understand on our own the laws the govern our lives? There is a tax on justice to the tune of $200/hour+.

    Jacobsen should be able to go into a court, tell the court what is happening to him, and the COURT should look at the situation and say, look, you are the victim here, this is what laws this asshole is guilty of, if he does this again you come back here and we will punish him.

    THAT is what should happen. I don't care how it is done. Maybe that means public attorneys who we can go to for legal advice and to file the correct charges in court. Maybe that means courts that we can just make in and the judge will be responsible for determining if and how he has been wronged. This isn't going to be popular with the trial lawyer lobby. The same as they have lobbied to make it illegal for us to try to help fellow citizens to understand the laws that govern our lives, they also strongly resist any move that would allow us people to get justice out of this system of ours without inserting quarters in their pockets just to play.

    You won't see Republicans get behind this because their big business sugar daddies want to keep citizens under their thumbs. You won't see Democrats get behind this because they are in the pockets of the trial lawyer lobby.

    A technicality is not justice at all. Fuck you KAM. And fuck you you goddamned lawyers who work for money not for what is just and true.
    • Re: (Score:3, Insightful)

      by Dhalka226 (559740)

      The legal system through which we must rely for relief from injustice such as this is truly a quagmire as we can see in this case by Jacobsen, clearly the victim, being forced to pay legal fees to a corporation because of a technicality.

      I don't consider making false charges in a court of law to be a technicality. In this case, it seems like a legitimate mistakes by a person who has probably legitimately been wronged, but I fail to see any reliable method of judging when it's a mistake and when it's someb

  • by natet (158905) on Monday November 13, 2006 @10:33PM (#16833420)
    that thinks this argument has much wider implications than just Open Source Software? If the judge rules for this piece of crap argument, it could pretty much shut down the web. Sites like the New York times, and ESPN would be forced to charge for every bit of content on their sites, because if they didn't, they would run the risk of losing control of their copyrighted material.
  • by Sloppy (14984) on Monday November 13, 2006 @11:20PM (#16833756) Homepage Journal
    The Motion [sourceforge.net], around page 6 says
    Defendants seek to dismiss the Copyright act claim on the basis that the right to bring a copyright infringement claim has been waived since Jaconsen granted the general public a nonexclusive license to reproduce, copy, and distribute the open source software.
    And then around page 14 it goes into details, where they make the argument that they were granted license to redistribute the stuff. And then they almost admit that they didn't comply with the license, and that they need to get sued for breach of contract.

    They certainly don't assert that copyright doesn't apply for Free Software or Open Source. This same exact argument could be used on a shrinkwrap EULA "violation."

    I guess it does raise a technical issue, though. When a creator and a user don't actually meet, sign contracts, etc -- when licensing gets implied -- how do you decide it if actually happened?

    For example, with either a Microsoft EULA, or GPLed Linux, or whatever, at some point a user may decide to do something that is not Fair Use under copyright. Maybe they want to modify the software and sell 10 copies to someone else (in the case of GPL) or maybe they want to .. uh .. actually I can't think of any rights that MS EULAs grant, but let's ass/u/me that there's some sort of reason a person might want to agree to it. (?!)

    When the user goes ahead and does the licensed copyright violation (e.g. selling 10 copies of Linux), it is argued that either they have violated copyright, or they have agreed to the license. Now let's say they are also doing something that is not permitted by the license (such as selling copies of Linux w/out offering the source). So now, they're either violating copyright, or they're violating the license. How do you know which one they did? Just like Microsoft's relationship with their users, you don't have any evidence that they ever accepted the license.

    If they sue you for copyright violation, just say you accepted the license -- and then they need to sue you for breach of contract instead. If they sue you for breach of contract, say you didn't accept the license, and then they'll have to sue for you copyright violation instead.

    Without evidence of what happened, you make 'em sue you twice. Of course, the second time (assuming they have any lawyer-money left), they've got you.

  • by sbaker (47485) * on Tuesday November 14, 2006 @12:03AM (#16833968) Homepage
    If you read the actual court documents, what the defense seems to be saying is that the license (which evidently isn't GPL - it's some kind of Xfree or Berkely style license) requires them only to give credit to the authors - which they have evidently not done and this they do not seem to deny (although, of course they don't admit it either!). The significant part of their argument is that say that the consequence of their failure to do so is not a violation of copyright law - but instead a breach of the license terms of the software. Then they point to Sun vs Microsoft over Java in which it was ruled that MS had not violated copyright law but had instead breached the terms of their license.

    IANAL - but that seems reasonable to me. Of course now they need to be stuck with a charge of breaching the license terms - but that's evidently not what the prosecution have accused them of. The problem is that the Xfree and similar licenses don't have cast-iron legal language as GPL does - so with weak language describing the 'licensing' terms - it seems possible that the defendants could indeed weasel their way out of this.

    Personally, I think that if you are going to use one of those licenses, the best you could hope for is a one line mention in the very small print of the Albanian section of the user manual - somewhere between the environmental impact statement and the warning not to let children under 3 years play with the software because of choking hazards. Why the heck you'd find that important escapes me. If you want solid copyright protection, use the GPL - if you want utter freedom for people to do whatever they like with your code - then don't be surprised when they do exactly that.

    • by Dachannien (617929) on Tuesday November 14, 2006 @12:27AM (#16834102)
      Well, in Sun v Microsoft [sun.com], the incompatibility issues that Sun proved in court were ruled to violate an independent term of the license agreement made between the two parties. (Microsoft made their Java incompatible with real Java, which violated the terms of their agreement.) Thus, the court said that while Microsoft had violated their agreement, it didn't mean that they violated copyright law.

      In at least some OSS licenses, a license for distribution of the software is granted only as long as the express limitations of the license agreement are followed. If you violate the terms of the agreement, you expressly invalidate the license that permits you to distribute the software. If you then distribute it anyway, you are violating copyright law. As you say, it really depends on what this particular license says in this case, though if it were the GPL, it would probably be ironclad enough to withstand the issue that came up in Sun v Microsoft.

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