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Copyright Protection Problems For OSS Project
Posted by
ScuttleMonkey
on Mon Nov 13, 2006 09:21 PM
from the copy-wrong dept.
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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On Software Patent Lawsuits Against OSS 400 comments
Bruce Perens writes "We've warned you for a decade. Now the monster has finally arrived: patent holders are filing suit against OSS developers." From the article: "We should not be confident that we will continue to have the right to use and develop Open Source software. A coordinated patent attack by a few companies, or even one large company, could completely destroy Open Source in the United States and cripple it in other nations. Funds and patent portfolios that have been established to help defend Open Source would not be sufficient to defend it. Only legislative changes to the patent system can fully protect Open Source and maintain it as a viable source of innovation for our future."
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Hate to break it to them (Score:4, Insightful)
See Also: Out of Germany, but even someone like D-Link couldn't shake the GPL:
Re:Hate to break it to them (Score:5, Informative)
Of course, to give credit, that came from:
h s.html
10 Big Myths about copyright explained
http://www.templetons.com/brad/copymyt
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Re:Hate to break it to them (Score:5, Informative)
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.
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Re:Hate to break it to them (Score:5, Interesting)
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.
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Re:Hate to break it to them (Score:5, Informative)
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):
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:
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:
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):
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.
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Re:What you are saying doesn't make sense (Score:5, Insightful)
Ok, IANAL (but I play one on /.). I read the decision that you have sited, and it cannot be applied to a case involving the GPL, for several reasons. First, the contract between Graham and James was strictly an oral contract for distribution rights, many terms of which had to be inferred by the district court. From the decision:
The GPL states explicitly that all rights granted by it are recinded if the terms are violated. So it's pretty simple to demonstrate that the agreement is void.
Further, the decision is based on whether the defendant could conclude that they maintained rights under the license, even though they had violated some terms. Check this out:
The court makes the distinction here - and the GPL makes it explicit. The court is re-stating the affirmation that is used in the GPL itself, paraphrased as "violate the conditions of this license, and you have no rights to the code".
Sorry, but there is NO WAY that that decision can be used to argue that you are not liable for copyright infringement just because the code is being distributed under a license. Your interpretation of the case is just too simplistic.
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Re:Hate to break it to them (Score:5, Informative)
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It's not being given away for free (Score:5, Insightful)
Promotional CDs (Score:5, Insightful)
I'm pretty sure that this defense won't work.
What part of the copyright act requires money? (Score:5, Insightful)
Re:What part of the copyright act requires money? (Score:5, Insightful)
I'm sure the actual case is more complicated and nuanced that that, however.
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I can do that too! (Score:5, Insightful)
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!
Naked woman on the roof! (Score:4, Funny)
It is kind of weird to expect that someone ought to play your game when you've already given up your whole hand.
That won't fly in court (Score:5, Insightful)
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.
you'd think, but... (Score:5, Interesting)
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.
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Re:you'd think, but... (Score:5, Insightful)
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.
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Established precedent in print journalism (Score:5, Informative)
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.
EFF? (Score:5, Insightful)
Already a $30,000 miscarriage of justice (Score:5, Insightful)
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.
Aren't they claiming they've been given a license? (Score:5, Interesting)
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.
The defense makes one good point... (Score:5, Informative)
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.
Re:Should be open and shut case. (Score:5, Insightful)
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.
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Re:Should be open and shut case. (Score:5, Insightful)
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Re:GPL (Score:5, Insightful)
The GPL is a distribution license, not an End User Licence Agreement. EULAs are licenses to use the software. The GPL is a license to distribute the software. You do not have to agree to the GPL to use any GPL software. The GPL gives you more rights than default copyright gives. EULAs give less rights than default copyright.
I believe EULAs are invalid by the doctrine of first sale. But, of course, IANAL. I feel that if EULAs are upheld we're going to start seeing EULAs on automobiles and other such property. Imagine if the computer chip in a car would keep the car from starting if you weren't using a "certified" fuel filter or gasoline. Then if you tampered with the chip (your propery, mind you since you paid for it), the manufacturer would sue you under the DMCA. You'd scream bloody hell, but for some reason when it comes to software people take it in the ass.
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Re:Read the brief they filed - he *may* be right (Score:5, Informative)
My interpretation is that as long as you provide a link to the author's web page somewhere on your site, you are golden.
Sounds like you can incorporate the open-source code into a commercial program, as long as you do not advertise that you are using it!
There are also no patent requirements -- at all! Which means someone can patent the ideas in the source code and then sue the original copyright holder -- while distributing the code! Since the existence of prior art does not render an issued patent invalid, this is a distinct possibility. Not to mention, how are you going to argue monetary damages if there are barely any restrictions?
Really, it sounds like the guy suing JMRI is mostly in the right, legally speaking. The artistic license may not be enforceable, and appears to give him the right to distribute the code commercially. The breach of contract suit won't yield any monetary damages -- the license is not restrictive enough. His patents are valid (at least until the USPTO revokes them, which may never happen). All I can say is... should have used the GPL.
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