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Strong Court Ruling Upholds the Artistic License

timothy posted more than 5 years ago | from the clear-cut-copyright-clause-crackdown dept.

The Courts 149

dilute writes "The US Court of Appeals for the Federal Circuit (an authoritative court that normally deals with patent law), has issued a strong ruling (PDF) upholding the Artistic License in a copyright dispute between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under the Artistic License, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version." Read on for more, below.Dilute continues: "The lower court denied relief, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). In a strong ruling, the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses." Reader ruphus13 point to Lawrence Lessig's commentary on the ruling; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.

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149 comments

Good for GPL but... (4, Interesting)

Anonymous Coward | more than 5 years ago | (#24588805)

; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.

As well as most EULAs I suppose... or is a legal distinction made between license for personal use vs. license for redistribution?

Re:Good for GPL but... (2, Informative)

Anonymous Coward | more than 5 years ago | (#24588849)

Yes.

Re:Good for GPL but... (2, Informative)

Anonymous Coward | more than 5 years ago | (#24588859)

is a legal distinction

IIRC, the original ruling that the lower court made in order to claim that the artistic license was powerless, was that no money changed hands therefore there were wookies on endor or something equally inane.

Re:Good for GPL but... (0)

Anonymous Coward | more than 5 years ago | (#24588921)

That just does not make sense.

You keep talking trash like that and my head will explode.

Re:Good for GPL but... (1)

HappySmileMan (1088123) | more than 5 years ago | (#24588939)

is a legal distinction

IIRC, the original ruling that the lower court made in order to claim that the artistic license was powerless, was that no money changed hands therefore there were wookies on endor or something equally inane.

I'd prefer if this was upheld, bad news for FOSS but everyone who gets sued by the RIAA for file-sharing could just state that no money was transferred therefore the copyright license was meaningless

Re:Good for GPL but... (5, Insightful)

fishbowl (7759) | more than 5 years ago | (#24589491)

Rights that are asserted under copyright, are not surrendered based on any money changing hands.

You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
I think you have the ideas of a "License" and a "Contract" conflated. A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.

Re:Good for GPL but... (4, Informative)

mr_matticus (928346) | more than 5 years ago | (#24590899)

I have no idea how this got modded insightful. It doesn't even make sense.

You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.

Contracts have nothing to do with it. Copyright does indeed deal with reserved rights--the creator's rights. Any right not granted by copyright or by independent agreement is reserved by the owner. Copyright does not supersede contractual rights; indeed, the entire point of contract law is to create relationships outside of or contrary to statutory law.

A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.

What does this even mean? Consideration is one way of validating a contract (but not the only way), and this has exactly nothing to do with reserved rights.

A license is a grant of rights. It is a promise not to sue. That's it. The GPL is not a license, because it says, "I promise not to sue IF you do x, y, and z"--that is a license agreement. It contains a license, but it too requires assent. Failure to provide that assent results in failure to attain the needed license, thus placing a person in a position of copyright inflation. The attempt to characterize it here as mere breach of contract is an attempt to limit potential judgments, as contractual damages are far less than statutory copyright damages.

It is not a binary situation. Finding copyright infringement does not preclude breach of contract, and in fact the two usually go hand in hand in licensing disputes. It is possible to infringe the copyright without breaching the contract, and it is also possible to breach the contract without committing copyright infringement.

Re:Good for GPL but... (2, Informative)

crossconnects (140996) | more than 5 years ago | (#24591713)

Contracts require consideration, and that means that a contract must have benefits going to each party. This may involve money, but a contract that grants benefits to one party, but not the other is considered to have been forced, and is therefore not enforceable.

I did not read the article, but it appears the court decided that this is not a contract issue as the lower court said, but rather a copyright issue, and that Kamind apparently violated it.

Re:Good for GPL but... (2, Informative)

mr_matticus (928346) | more than 5 years ago | (#24592359)

Contracts require consideration, and that means that a contract must have benefits going to each party.

No. Consideration is not benefit.

a contract that grants benefits to one party, but not the other is considered to have been forced

No. A contract involving acts on one party may be unilateral or gratuitous, but being "forced" has nothing to do with whether the contract is a good deal for both parties. Voluntary entry into an agreement not requiring unlawful activity is not "forced".

I did not read the article, but it appears the court decided that this is not a contract issue as the lower court said

Then perhaps it would be best to refrain from speculation, since that is not what the opinion says at all. The operative language is "only for breach of contract", which is not the issue. The issue is the availability of copyright infringement as a cause of action, wherein the lower court erred in rejecting the theory.

Once again, it is not either/or.

Re:_OSS (2, Insightful)

TaoPhoenix (980487) | more than 5 years ago | (#24589717)

"Free" might aquire yet another meaning, something like "Free as in a Dollar".

It might have to do with the "Consideration Exchanged" part of contract law. I'd forego a dollar's worth of benefit for software to slide by that rule on the software side. "A Dollar's benefit" could be interpreted like "A Dollar's worth of NYCL's time"... which would be a reply to a comment here.

Re:Good for GPL but... (5, Informative)

fishbowl (7759) | more than 5 years ago | (#24588865)

>or is a legal distinction made between license for personal use vs. license for redistribution?

Yes, there is such a distinction from the start -- copyright protects distribution, not use.
You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.

Re:Good for GPL but... (4, Insightful)

vux984 (928602) | more than 5 years ago | (#24589631)

Yes, there is such a distinction from the start -- copyright protects distribution, not use.

copyright protects *copy rights* including: copying, redistribution, performance, and broadcast.

You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.

What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.

If I have no license to use it, I can't make those copies.

So you can't use it without a license.

And the courts have ALREADY made rulings that apply copyright infringement to occurring in an unauthorized 'disk to RAM' copy made by that WoW cheat program. (glider?)

Re:Good for GPL but... (1)

fishbowl (7759) | more than 5 years ago | (#24589685)

>copyright protects *copy rights* including: copying, redistribution, performance, and broadcast.

Yes, I know. I've studied and practiced entertainment law.

I'm not willing to go down the "copy to your hard drive in order to use it" road with you right now,
although I understand the argument, including the Blizzard case.

Re:Good for GPL but... (1)

russotto (537200) | more than 5 years ago | (#24589921)

What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it. If I have no license to use it, I can't make those copies. So you can't use it without a license.

In the United States, you can. 17 USC 117(a). Which is why EULAs are unnecessary, and why this ruling does not necessarily mean that violating an EULA is violation of copyright.

Re:Good for GPL but... (4, Insightful)

mrchaotica (681592) | more than 5 years ago | (#24590013)

What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.

Although I admit that some judges have been stupid enough to buy it, that argument is bullshit because those copies are incidental to the physical workings of the medium, and express no intent on the part of a human.

By the same argument, DVDs would require an EULA because they're decrypted and stored in the DVD player's RAM, the Internet couldn't exist as we know it because routers would violate copyright if they were set to store-and-forward (and I'm not even going to mention proxy and mail servers!), books would require an EULA because their information is copied into photons by the light reflecting off them and into the reader's eyes, etc. It's absurd.

And this isn't even a Fair Use argument: the installation of software onto hard drives and duplication into RAM shouldn't even count, legally, as copies to begin with! (As long as there's a one-to-one correspondence between the installed program and its installation media, of course.)

And the courts have ALREADY made rulings that apply copyright infringement to occurring in an unauthorized 'disk to RAM' copy made by that WoW cheat program. (glider?)

And those courts were wrong.

Re:Good for GPL but... (4, Insightful)

Anonymous Coward | more than 5 years ago | (#24590347)

There is always the merchantability argument to counter that. If you sell me a product which requires specific technical steps to use and then don't allow me (by whatever mechanism) to take those steps, the product is useless.

To use a DVD as intended and marketed, my DVD player has to be able to read the disc, store and decrypt the data stream, copy it to a buffer, stream the video to a TV, and so on. If you prevent me from doing so, that would be a form of fraud because you marketed and sold it as a way to watch a movie.

Re:Good for GPL but... (1)

vux984 (928602) | more than 5 years ago | (#24590373)

Although I admit that some judges have been stupid enough to buy it, that argument is bullshit

For what its worth, I agree it SHOULD be bullshit. The trouble is that the courts ARE buying it.

Re:Good for GPL but... (1)

kjots (64798) | more than 5 years ago | (#24593987)

Although I admit that some judges have been stupid enough to buy it, that argument is bullshit

For what its worth, I agree it SHOULD be bullshit. The trouble is that the courts ARE buying it.

Now is the time to decide if we want to be complacent about such a situation, or outraged.

I've made my decision, how about the rest of you?

Re:Good for GPL but... (2, Informative)

cfulmer (3166) | more than 5 years ago | (#24590457)

Eeehhh....

In-memory copies count as copies. But, if you are the owner of a copy of computer software, then you can (under 17 U.S.C. 117(a)) copy it into computer memory for the purpose of running it without infringing.

The reason that EULAs are important is because software publisher asserts that you are not an owner of a copy. And, if you're not an owner of a copy, then Section 117(a) doesn't apply. There have been court decisions on both sides of this one.

As for your arguing about temporary buffer copies, those aren't "fixed" under the copyright act and thus are not infringing copies. (See the recent Cablevision case for a longer discussion). Your other cases (such as store-and-forward email) are cases either of an implied license or where there was no volitional act. (You're not liable if somebody else causes your computer to make a copy and you don't even know that copy exists.)

Copyright Infringement actions are decided under strict liability -- the "intent" of the person doing the copying doesn't matter.

Re:Good for GPL but... (3, Informative)

swillden (191260) | more than 5 years ago | (#24590617)

What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.

It makes a HUGE difference, since US copyright law specifically exempts copies that are necessarily made in the normal course of use. Those copies cannot legally be considered copyright infringement.

Specifically, the law says:

Making of Additional Copy or Adaptation by Owner of Copy. â" Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

Emphasis mine, of course.

So, the GP is absolutely correct: EULA's that try to impose additional restrictions BEYOND what copyright law imposes must be interpreted as contracts, and there must be some consideration paid to the seller that justifies the buyer giving up those rights that he or she would otherwise have.

Copyleft licenses of various sorts, on the other hand, impose no restrictions that aren't already imposed by the law. Instead, they just grant permission to make copies and derived works, subject to some requirements.

In both cases, mere normal use of the program, even if that involves making copies on a hard drive, in RAM, etc., are not copyright infringement.

Re:Good for GPL but... (1)

stoolpigeon (454276) | more than 5 years ago | (#24588903)

IANAL-- It's stronger copyright law - but for 'our' side I guess. Interesting.

I would think with a eula the issues aren't just whether or not it is a license or contract but all the issues with how that agreement is entered by the user. so there is more to it than this, it seems to me.

With the vast number of Free and Open Source licenses out there, I think it will take a few more cases like this before things really start to get ironed out. Yeah- stuff may bleed over, but it doesn't have to, even if it would make sense.

Re:Good for GPL but... (2, Informative)

HappySmileMan (1088123) | more than 5 years ago | (#24589011)

IANAL-- It's stronger copyright law - but for 'our' side I guess.

It's not stronger copyright law, the way copyright works has not changed at all, it's just an already existing copyright being honoured by the federal court, after for some reason a lesser court refused to honour it. I could probably explain better if I RTFA but we all know that's not going to happen

Re:Good for GPL but... (1)

stoolpigeon (454276) | more than 5 years ago | (#24589049)

I don't know what would be the best words for it - but some people thought the wording was ambiguous enough that the license wouldn't be afforded certain protections and this court has said the language was acceptable. Maybe stronger isn't right - how about broader? Or a change in how copyright law is applied? Something definitely has changed here in my opinion.

Re:Good for GPL but... (1)

orclevegam (940336) | more than 5 years ago | (#24589989)

Something has been resolved, not changed. It's one of the flaws with out legal system (a great many legal systems actually), that until a law has been brought to court (often many times), and all the edges cases get ironed out, there's a lot of wiggle room in exactly what the law "means" and whether it applies in this or that case. All this ruling has done is nailed down one of those edge cases, in copyright law.

Re:Good for GPL but... (1)

stoolpigeon (454276) | more than 5 years ago | (#24590297)

I'd consider bringing clarity where there was confusion to be a change. We could play these games all day. I'm glad I'm not a lawyer - it would drive me nuts picking apart every little word.
 
But back on topic - there are people that have made decisions based on the lack of clarity in this very situation as well as others. Now that it is less foggy, they make different decisions now. Once again, in my book, change.
 
I'm just glad it fell this way. I think it could have turned out differently - because to be honest I don't think the artistic license was worded all that well. But we learn as we go I guess.

Re:Good for GPL but... (5, Insightful)

gnasher719 (869701) | more than 5 years ago | (#24590821)

It's not stronger copyright law, the way copyright works has not changed at all, it's just an already existing copyright being honoured by the federal court, after for some reason a lesser court refused to honour it. I could probably explain better if I RTFA but we all know that's not going to happen.

The judge in this case corrected a blatant error by the District Court.

Like the GPL, the Artistic License basically says "You can copy this software provided you do X, Y and Z". The correct interpretation of this license is: If I do X, Y and Z then I have the right to copy the software. If I don't do X, Y and Z, then I have no right to copy the software, and copying is copyright infringement, and courts will stop me from doing it if the copyright holder asks them. The wrong interpretation, used by the District Court, was: I have the right to copy the software. I am also obliged to X, Y and Z, and if I don't do them, then the copyright holder can sue me to do X, Y and Z or pay damages. However, the copyright holder cannot stop me from copying. As I said, this has now been declared the wrong interpretation.

Re:Good for GPL but... (4, Informative)

mrchaotica (681592) | more than 5 years ago | (#24589083)

IANAL-- It's stronger copyright law - but for 'our' side I guess.

On the contrary, the issue being decided here is copyright law. To say that the Artistic License is "stronger than copyright law" makes no sense, as it relies on copyright law for its enforcement. In essence, the court ruled that the Artistic License works the same way as the GPL (even though the GPL makes it explicit and the Artistic License doesn't):

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

(GPL version 3, section 9; emphasis mine)

The argument made by the emphasized text is the same argument that the JMRI people made here (and that the judge agreed with).

Re:Good for GPL but... (2, Informative)

stoolpigeon (454276) | more than 5 years ago | (#24589201)

I'm not trying to say the license is stronger than copyright law. I was trying to say that by making the license more than a contract they've made copyright law stronger, broader - however it would be best put. In fact, if I understand you correctly, I was trying to say what you just said.

Re:Good for GPL but... (2, Informative)

hedwards (940851) | more than 5 years ago | (#24589447)

This wouldn't be an EULA situation, it's a license issue on the code itself. Had the party being sued been an end user it would have been a very different situation. But they took the code, incorporated it into a product and sold that product.

Along the way they apparently violated the licensing on the code on multiple fronts and are now likely to be taken to task for doing so.

It's a much easier case to make, once you've managed to subpoena the code than enforcing a EULA would be. For instance you don't have to spend time and effort trying to figure out who agreed to it.

Re:Good for GPL but... (5, Insightful)

Anonymous Coward | more than 5 years ago | (#24590047)

It's not stronger copyright law, it's just common-sense upholding of contracts.

JMRI offered a license which overrides copyright law and Kamind violated the terms of that license. The court is saying that when Kamind broke the terms of the license, the copyright-defying activities that the license allowed, were no longer allowed.

If I offer to trade you a moon rock for a pint of ice cream, and you don't give me a pint of ice cream, then you don't get my moon rock. Kamind wanted to take the moon rock anyway, and then say, "Don't like it? Then sue me for the value of a pint of ice cream! Nyah nyah!" JMRI says, "No, I'm suing you for the value of my moon rock."

Re:Good for GPL but... (1)

Ruzty (46204) | more than 5 years ago | (#24588963)

Use of a copy of the original work is not at issue. When the license comes into play is in making and distributing copies without abiding by the terms of the license you received the work under.

If the license says you are authorized to modify the original and distribute said modification as long as you abide by the license's terms and you do not that is copyright infringement. That differs from most EULAs which do not grant a right to duplicate or distribute the work.

Re:Good for GPL but... (2, Informative)

apathy maybe (922212) | more than 5 years ago | (#24588987)

EULAs tend to restrict your rights, to less then what is available under copyright law. (E.g. many of them would say that you aren't allowed to make back-up copies, or to reverse engineer the software, both of which are allowed (at least) under Australian copyright law (I believe).)

However, free software licences enhance what you are allowed to do. Enabling, for example, you to re-use software in your own work.

However, these licences tend to say that you have to follow certain conditions if you wish to have this extra freedom. The most common being attribution.

In the case mentioned, one actor (company or person, whichever), took code from another actor's project and used it without permission in a manner which wasn't permitted by the licence for that code.

If there was no licence for the code, then that would be a strict copyright violation. There was a licence, and reuse was allowed, under certain conditions. However, because these weren't followed, bang copyright violation (as if there wasn't a licence at all).

Insert standard disclaimer here.

Re:Good for GPL but... (0)

Anonymous Coward | more than 5 years ago | (#24589417)

That's doublethink, free software licenses also restrict what you are allowed to do, just not to the extent of the licenses applied to proprietary software.

Re:Good for GPL but... (1)

mr_mischief (456295) | more than 5 years ago | (#24590489)

No, it's the copyright law that limits what you can do. Free software licenses loosen some of those restrictions somewhat. They just don't loosen them as much as certain other OSS license or placing the work in the public domain.

Re:Good for GPL but... (0)

mrchaotica (681592) | more than 5 years ago | (#24588997)

is a legal distinction made between license for personal use vs. license for redistribution?

A distinction should be made, since personal use doesn't require a license to begin with. Think about it: when's the last time you had to agree to an EULA to read a book you bought, or wear a shirt you bought, or listen to a CD you bought, or watch a movie you bought, or even played a (console-based) video game you bought? These things are no different than using software you bought.

Game console EULA (1)

tepples (727027) | more than 5 years ago | (#24589725)

when's the last time you had to agree to an EULA to [...] even played a (console-based) video game you bought?

I had to click through a license screen to get some features of my Wii console to work. I don't remember the exact words, but it appeared to prohibit me from modifying the console to accept software developed by entities too small to be eligible for a license from Nintendo.

Re:Game console EULA (1)

mrchaotica (681592) | more than 5 years ago | (#24590139)

The mere fact that that text was there doesn't mean it had any actual legal force. What gives Nintendo the right to dictate what you can do with your own property? Nothing!

It's as absurd as Ford trying to tell you that you can't add a supercharger to your Mustang. Ford can't do that (the most it can do is deny your warranty claim, and even then it has to prove that your modification caused the problem), and Nintendo can't either!

Re:Good for GPL but... (0)

Anonymous Coward | more than 5 years ago | (#24589287)

I never understood why the GPL was a eula?

As an end user I could care less. I don't even need to agree to the gpl to use it.

The GPL is basically irrelevant for usage of a program, but for some reason many OSS apps insist on making you click "i agree" when installing the binaries..

Re:Good for GPL but... (4, Informative)

mrchaotica (681592) | more than 5 years ago | (#24589383)

I never understood why the GPL was a eula?

Exactly: it isn't one!

for some reason many OSS apps insist on making you click "i agree" when installing the binaries..

Yep, this is a fairly serious bug in those software's installers. I keep meaning to file it on OO.o's tracker...

Re:Good for GPL but... (4, Insightful)

stinerman (812158) | more than 5 years ago | (#24589759)

They should put the GPL in the license agreement spot, but allow the "next" button to be clicked even if the agreement is not read or agreed to.

A small blurb saying acceptance is not required to use the software, but is required to distribute copies (modified or otherwise) would be an extra perk.

Re:Good for GPL but... (1)

cfulmer (3166) | more than 5 years ago | (#24590535)

For the most part, the GPL only covers distribution. But, there are some terms that cover the end user -- see, for example, sections 15 and 16 of GPL v3. These are VERY much the sort of thing that EULAs are intended to cover.

Re:Good for GPL but... (1)

mrchaotica (681592) | more than 5 years ago | (#24592601)

Okay, but Section 9 contradicts that. Considering that it explicitly says that you don't have to accept the GPL to run the program, does that mean that the warranty and liability are not actually disclaimed until one conveys the program (and thus agrees to the GPL)?

Re:Good for GPL but... (1)

cfulmer (3166) | more than 5 years ago | (#24592925)

So that's one of the reasons I think the GPL could have used a little more editing by a good lawyer. Those sections are clearly intended to apply to all uses, but because of Section 9, there's a decent argument that they don't.

Wrong! (Re:Good for GPL but...) (1)

bwcbwc (601780) | more than 5 years ago | (#24590947)

The GPL is a EULA. It's also a DLA (distributor's license agreement). It grants you the right to make unlimited copies of the software either for your own use (EULA) or for distribution under the terms of the license. That's what the L stands for. Without the GPL, you would not be allowed to copy/install/compile the work on a single computer, let alone many, without violating the copyright.

The distinguishing feature of the GPL that makes it seem like it isn't a EULA is that it grants much, much broader permissions for redistribution and modification to the licensees than any commercial EULA. But these are still licensed permissions with binding conditions on the licensee, and not public domain relinquishment of the rights attached to copyright.

Re:Wrong! (Re:Good for GPL but...) (2, Informative)

mrchaotica (681592) | more than 5 years ago | (#24592665)

Without the GPL, you would not be allowed to copy/install/compile the work on a single computer, let alone many, without violating the copyright.

Whoa there, champ. Read Section 9:

9. Acceptance Not Required for Having Copies.

You are not required to accept this License in order to receive or run a copy of the Program. Ancillary propagation of a covered work occurring solely as a consequence of using peer-to-peer transmission to receive a copy likewise does not require acceptance. However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so.

So either the lawyers who wrote the GPL were wrong, or you are. (Guess who I'm siding with.) Also, see my other post [slashdot.org] about the "copy/install/compile is copyright infringement" argument.

Re:Good for GPL but... (1)

bcrowell (177657) | more than 5 years ago | (#24591383)

for some reason many OSS apps insist on making you click "i agree" when installing the binaries..

Yep, this is a fairly serious bug in those software's installers. I keep meaning to file it on OO.o's tracker...

The really annoying thing about it is that on a shared Windows box, it demands that every user click through the license.

Re:Good for GPL but... (2, Insightful)

fishbowl (7759) | more than 5 years ago | (#24589533)

>I never understood why the GPL was a eula?

It is not. It is a license that makes a limited grant of distribution rights, rights that would otherwise be fully reserved by default under copyright law.

It has nothing whatsoever to do with "end users", and even goes as far as to explicitly point this out (even though it is not necessary to do so).

A EULA would be valid if it were a contract (with a meeting of minds, agreement on the subject matter, and consideration), but most EULAs are not contracts, and therefore serve little purpose aside from "notice" (and "notice" does have some value in a legal sense).

Re:Good for GPL but... (1)

mr_matticus (928346) | more than 5 years ago | (#24590741)

It is not. It is a license that makes a limited grant of distribution rights, rights that would otherwise be fully reserved by default under copyright law.

You cannot impose terms and restrictions or require action through the use of a license; a license is a grant. If you are imposing terms, it's a license agreement, period. Whether you want to consider the affected party an end user or not is really immaterial.

The GPL is indeed a EULA in the broad sense that it is a distribution agreement from a content owner and its licensees. The term is based on a notion that everyone who is not the developer/owner or a merchant is an end user. The basic term is perhaps inadequate, but the idea of derivative developers vs. "end users" is an unimportant distinction. It is really at this point simply a straw man for false pedanticism, particular since the industry term is SLA, not EULA.

most EULAs are not contracts

An assertion without backing. A software license agreement is per se valid, and always has been. This case simply confirms it. Whether it's the Artistic License, the GPL, or a proprietary license, they are enforceable, less any unlawful provisions. No case has ever held otherwise.

Re:Good for GPL but... (1)

fishbowl (7759) | more than 5 years ago | (#24592421)

>>most EULAs are not contracts

>An assertion without backing.

EULAs are not contracts. That assertion has plenty of "backing".

Where's the consideration? Where's the meeting of the minds? Even if it's a contract of adhesion, where are the parties' rights in terms of "reasonable expectations?"

Quickly now, list the four criteria required to make an agreement "a contract" under US law.

Re:Good for GPL but... (1)

mr_matticus (928346) | more than 5 years ago | (#24593605)

EULAs are not contracts. That assertion has plenty of "backing".

Citation please.

Where's the consideration? Where's the meeting of the minds? Even if it's a contract of adhesion, where are the parties' rights in terms of "reasonable expectations?"

Agreement with consideration is just one of at least five judicially-recognized theories of contractual obligation, but since that's the wheelhouse you want to stay in, so be it. The consideration is a promise backed by money (or an exchange promise) versus delivery of a valuable product. There is no issue of a meeting of the minds, because the terms are laid out and assented to. It's not a case of mistake or misrepresentation, and even mentioning it is nothing more than a red herring.

As to "rights" with "reasonable expectations", your use of the terminology smacks of amateurism. The reasonable expectation in a software licensing arrangement are the nonexclusive use of the product, subject to the terms of the license chosen. In 2008 it is well past the point where the existence of license terms is a surprise. As long as consumer software has been available, they have included various terms designed to protect the interests of both parties.

The tool is wrongly maligned based on inappropriate uses. It's no better to make your attack than to question contracts in general because they are abused by some.

Quickly now, list the four criteria required to make an agreement "a contract" under US law.

"A contract" has two parts. Offer and acceptance. Anyone who attempts to break the elements of a contract down into a specific number of parts (beyond offer and acceptance) is acting on Cliff's notes at best. What constitutes an offer and acceptance varies based on the type of contract being considered and the specifics of the bargain.

I would imagine, however, that you are referring to agreement, consideration, intent, and some combination of capacity or memorialization, depending on where you live. The purpose of this exercise, though, is unknown.

Re:Good for GPL but... (4, Interesting)

Sloppy (14984) | more than 5 years ago | (#24589645)

the reasoning is generalizable to the GPL and other Free software licenses

As well as most EULAs I suppose...

Let's all hope. This could totally trash EULAs that some people have been attempting to enforce despite the other parties never taking the offer.

JMRI: we offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
Kamind: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that JMRI offered. The terms of copyright law are now in force.
Kamind: May I create and sell derived works?
Court: Copyright law says you may not.
Kamind: oh, crap.

Apple: We offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
User: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that Apple offered. The terms of copyright law are now in force.
User: May I install the software I bought on my computer even if Apple didn't make the computer?
Court: Copyright law says you may.
Apple: oh, crap. we should have required signing a sales contract, as a condition for obtaining the software.
Blizzard: oh, crap.

Re:Good for GPL but... (1)

Dachannien (617929) | more than 5 years ago | (#24590957)

Blizzard: oh, crap.

Wrong. You have to agree to the EULA/ToS before subscribing to their service, and they offer a full refund to anyone who, before subscribing, decides they don't want to accede to the EULA/ToS.

In general, that pretty much takes care of the big problem that the courts have had with shrinkwrap licenses (that you must buy the software and complete the transaction before you can read the EULA). While the refund provision, AFAIK, hasn't been tested in court directly, it stands to reason that the court's concerns would be ameliorated by such a provision. In the absence of a shrinkwrap concern, EULAs have generally been found valid, barring other standard contract law issues like unconscionable terms, etc.

Re:Good for GPL but... (3, Informative)

Svartalf (2997) | more than 5 years ago | (#24590019)

It's NOT a EULA.

The GPL doesn't cover USAGE (In fact, it explicitly prohibits the placing of any restrictions on usage by downstream recipients...)- it covers a little different thing.

It covers publication and derivative works.

If you give a copy to someone else, you're publishing a copy.

If you make a modification to the protected work and then give that to someone else, you're making a derivative work.

Neither is usage in the eyes of Copyright Law.

If you fail to abide by the terms under which you are given permission to do so by the various rights holders, you don't have their permission and thereby are guilty of straight Copyright Infringement.

Willful acts thereof are viewed in a very dim light by the Courts and the Law.

Sounds like very good news for the FOSS community. (2, Informative)

sherpajohn (113531) | more than 5 years ago | (#24588839)

In the US at least. Has there been any similar cases in Canada or other countries outside the US?

Re:Sounds like very good news for the FOSS communi (1)

msaver (907214) | more than 5 years ago | (#24588955)

It's actually a really easy case to win. I wouldn't worry about it holding up in any nation's court. All you need to ask is two questions...

1. Do you have a license to use this copyrighted code?
If no, they lose the case. If yes...
2. Did you abide by the terms of your license?

That's it.

Re:Sounds like very good news for the FOSS communi (3, Informative)

chromatic (9471) | more than 5 years ago | (#24588981)

Do you have a license to use this copyrighted code?

I believe you mean "distribute", not "use".

Re:Sounds like very good news for the FOSS communi (2, Informative)

mrchaotica (681592) | more than 5 years ago | (#24589271)

It's actually a really easy case to win.

You think that, but you should note that this is an appellate decision: JMRI actually lost the first time!

Granted, if you read the original court's decision it's obvious that the judge didn't understand the issue at all -- which is not necessarily the judge's fault, as JMRI's case wasn't argued very competently in my opinion -- but it still happened.

Re:Sounds like very good news for the FOSS communi (4, Informative)

Svartalf (2997) | more than 5 years ago | (#24589157)

Yeah, the GPL was upheld in Germany as valid.

The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.

These licenses are NOT EULAs. They're all largely publication and derivative works licenses- with the royalties being whatever the terms of the license requires for being able to publish the stuff to downstream recipients.

No license?

No publication. No derivative works.

You publish or make a derivative work without the license to do so, you're guilty of willful infringement of the rights holders. That carries a much, much nastier penalty than accidental ones and it's something Verizon and Actiontec did NOT want to face the music on in court- so they settled out of it once it got filed.

Re:Sounds like very good news for the FOSS communi (1)

ksd1337 (1029386) | more than 5 years ago | (#24590981)

The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.

If they were unenforceable, the whole concept of copyright would suddenly appear to be a pile of nonsense to all the "intellectual property" zealots like the RIAA, MPAA, etc.

Oh Hell Yes (4, Funny)

cromar (1103585) | more than 5 years ago | (#24588929)

Sadly, I will sleep better at night knowing that there is some favorable precedent regarding open licenses.

Finally, a court for the 21st century! (5, Insightful)

langelgjm (860756) | more than 5 years ago | (#24588957)

It was refreshing to read certain portions of the ruling. I suggest everyone take a look at it. Here's what stuck out at me:

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.

This too:

The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit... Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.

Good to know the court system can still work!

Re:Finally, a court for the 21st century! (0)

Anonymous Coward | more than 5 years ago | (#24590553)

groklaw has it all as text.

Re:Finally, a court for the 21st century! (2, Interesting)

shallot (172865) | more than 5 years ago | (#24590621)

I agree, it was surprisingly detailed and coherent when talking about open source.

And it was also fairly amusing, the very verbose explanation of what the words "provided that" and "condition" mean, it sounded like a really fancy *plonk* to the district court :)

I was, however, surprised to see this in the footnote on page 7:

For example, the GNU General Public License, which is used for the Linux operating system, prohibits downstream users from charging for a license to the software. See Wallace v. IBM Corp., 467 F.3d 1104, 1105-06 (7th Cir. 2006).

I'm not sure what the court's exact definition of 'charging for a license' is there (and I don't have that Wallace v. IBM reference handy), but the GPL isn't actually supposed to prohibit distributors from charging, it just makes charging impractical because they have to provide the whole code as well.

Re:Finally, a court for the 21st century! (2, Insightful)

gnasher719 (869701) | more than 5 years ago | (#24590995)

I'm not sure what the court's exact definition of 'charging for a license' is there (and I don't have that Wallace v. IBM reference handy), but the GPL isn't actually supposed to prohibit distributors from charging, it just makes charging impractical because they have to provide the whole code as well.

Let's say I have the source code and executable code for the gcc compilers on my hard drive at home. I can sell you the executable code for a million dollars if you are stupid enough to pay that amount; that is perfectly legal under the GPL. You can then ask me for the source code; I can charge you my cost for providing the source code (lets be generous, 20 dollars for burning a CD and mailing it to you). You decide that you want to give copies to your friends, so you need a license to do this. I have to give you the license to make copies under the terms of the GPL, and I am not allowed to charge a penny for it.

Re:Finally, a court for the 21st century! (1)

shallot (172865) | more than 5 years ago | (#24591533)

OK, so the footnote is just too generally phrased for my mental parser. A simple reference to GPL v2.0 section 2b would have sufficed. But I guess they like to reference other court documents only.

Good job, Federal Court of Appeals! Some comments: (2, Interesting)

KWTm (808824) | more than 5 years ago | (#24593117)

It was refreshing to read certain portions of the ruling. ... Good to know the court system can still work!

Agreed! I did read through the entire judgement --I figured I'd take my turn as the 0.1% of Slashdot to read the article so that the rest of Slashdot didn't-- and here are some comments.

This judge. Jeffrey S. White, was surprisingly familiar with free and open source licenses, mentioning the GNU GPL and the MIT OpenCourseware licenses. I wonder if he already had some familiarity, or whether it was the amici curiae from the Creative Commons Corporation and from the Wikimedia Foundation? Anyway, good job on all of them!

This judgement reminded me of why it was important to get advice from lawyers. Something that seemed plain-as-day to me turned out to be a focal point of debate. I've always assumed that, with a license like the GPL or other open source licenses, if you don't abide by the GPL, then the GPL doesn't apply --it's as if the GPL didn't exist-- and now you've violated copyright law. In this case (which is not GPL but the Artistic License [wikipedia.org] , it wasn't so obvious: the defendants argued that the license itself freed the defendants from copyright law, and if the defendants then violated the license, then it was just a license violation (contract law) rather than copyright violation. This was how the defendants successfully argued at the Northern California District Court. Fortunately, the Appeals court overrode this, taking into account the spirit of the Artistic License and keeping in mind the other open source licenses. But it was a point I never thought would be questioned.

As the judgement points, the difference between license violation and copyright violation is especially important because, with license (contract) violation, you only get economic damages in return. If you write F/LOSS, then usually you can't really say that you've lost a million bucks because they stole your software. But this judge recognized the non-economic benefit of licensing under F/LOSS, and specifically said,

The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through
injunctive relief.

In other words, "money isn't everything".

If the law decided that the problem was license violation, then Microsoft could violate F/LOSS, and then toss it a few coins and say, "Sorry --here's some spare change for your troubles." With the law deciding that it's a matter of copyright and not contract violation, the judge can tell Microsoft, "I don't give a rat's ass how much money you have --stop what you're doing or you will be caned."

I'm sure the GNU GPL, having been thoroughly vetted by Eben Moglen, has clearer language than the Artistic License, which prevents such loopholes, but it's still good to see a judge that understands the issues. Judge White has remanded the case --I think this means that he's sent the case back to the District Court saying, "Go try this case again --you didn't do your homework properly the first time."

(Incidentally, was this the same judge that Slashdot covered a year or so ago where he lambasted the lawyers on both sides for not doing their homework? Name sounds familiar somehow, but I can't place it.)

Here's the full text (after some tidying) (0)

Anonymous Coward | more than 5 years ago | (#24593289)

Haha, if I post this, then my karma will be modded up all the way!
Hey, wait, who are all these other people who have posted under the same nickname as me?

United States Court of Appeals for the Federal Circuit 2008-1001
ROBERT JACOBSEN, Plaintiff-Appellant,
v.
MATTHEW KATZER and KAMIND ASSOCIATES, INC. (doing business as KAM Industries), Defendants-Appellees.
                Victoria K. Hall, Law Office of Victoria K. Hall, of Bethesda, Maryland, argued for
plaintiff-appellant.
                R. Scott Jerger, Field Jerger LLP, of Portland, Oregon, argued for defendants-
appellees.
                Anthony T. Falzone, Stanford Law School, Center for Internet and Society, of
Stanford, California, for amici curiae Creative Commons Corporation, et al. With him on
the brief was Christopher K. Ridder.
Appealed from: United States District Court for the Northern District of California
Judge Jeffrey S. White
    United States Court of Appeals for the Federal Circuit

Appeal from the United States District Court for the Northern District of California in
case no. 06-CV-1905, Judge Jeffrey S. White.
__________________________DECIDED: August 13, 2008__________________________
Before MICHEL, Chief Judge, PROST, Circuit Judge, and HOCHBERG, * District Judge.
HOCHBERG, District Judge.
                              The Honorable Faith S. Hochberg, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
                We consider here the ability of a copyright holder to dedicate certain work to free
public use and yet enforce an Aopen source@ copyright license to control the future
distribution and modification of that work. Appellant Robert Jacobsen (AJacobsen@) appeals
from an order denying a motion for preliminary injunction. Jacobsen v. Katzer, No. 06-CV-
01905 JSW, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007). Jacobsen holds a copyright to
computer programming code. He makes that code available for public download from a
website without a financial fee pursuant to the Artistic License, an Aopen source@ or public
license. Appellees Matthew Katzer and Kamind Associates, Inc. (collectively
AKatzer/Kamind@) develop commercial software products for the model train industry and
hobbyists. Jacobsen accused Katzer/Kamind of copying certain materials from Jacobsen=s
website and incorporating them into one of Katzer/Kamind=s software packages without
following the terms of the Artistic License. Jacobsen brought an action for copyright
infringement and moved for a preliminary injunction.
                The District Court held that the open source Artistic License created an Aintentionally
broad@ nonexclusive license which was unlimited in scope and thus did not create liability
for copyright infringement. The District Court reasoned:
                The plaintiff claimed that by modifying the software the defendant had
                exceeded the scope of the license and therefore infringed the copyright.
                Here, however, the JMRI Project license provides that a user may copy the
                files verbatim or may otherwise modify the material in any way, including as
                part of a larger, possibly commercial software distribution. The license
                explicitly gives the users of the material, any member of the public, Athe right
                to use and distribute the [material] in a more-or-less customary fashion, plus
                the right to make reasonable accommodations.@ The scope of the
                nonexclusive license is, therefore, intentionally broad. The condition that the
                user insert a prominent notice of attribution does not limit the scope of the
                license. Rather, Defendants' alleged violation of the conditions of the license
                may have constituted a breach of the nonexclusive license, but does not
                create liability for copyright infringement where it would not otherwise exist.
Jacobsen, 2007 WL 2358628 at *7 (internal citations omitted).
                On this basis, the District Court denied the motion for a preliminary injunction. We
vacate and remand.
                                                                                                I.
                Jacobsen manages an open source software group called Java Model Railroad
Interface (AJMRI@). Through the collective work of many participants, JMRI created a
computer programming application called DecoderPro, which allows model railroad
enthusiasts to use their computers to program the decoder chips that control model trains.
DecoderPro files are available for download and use by the public free of charge from an
open source incubator website called SourceForge; Jacobsen maintains the JMRI site on
SourceForge. The downloadable files contain copyright notices and refer the user to a
ACOPYING@ file, which clearly sets forth the terms of the Artistic License.
                Katzer/Kamind offers a competing software product, Decoder Commander, which is
also used to program decoder chips. During development of Decoder Commander, one of
Katzer/Kamind=s predecessors or employees is alleged to have downloaded the decoder
definition files from DecoderPro and used portions of these files as part of the Decoder
Commander software. The Decoder Commander software files that used DecoderPro
definition files did not comply with the terms of the Artistic License. Specifically, the
Decoder Commander software did not include (1) the authors= names, (2) JMRI copyright
notices, (3) references to the COPYING file, (4) an identification of SourceForge or JMRI as
the original source of the definition files, and (5) a description of how the files or computer
code had been changed from the original source code. The Decoder Commander software
also changed various computer file names of DecoderPro files without providing a
reference to the original JMRI files or information on where to get the Standard Version. 1
_._
main text continued after this Footnote 1
                                Katzer/Kamind represents that all potentially infringing activities using any of
the disputed material have been voluntarily ceased. The district court held that it could not
find as a matter of law that Katzer/Kamind=s voluntary termination of allegedly wrongful
activity renders the motion for preliminary injunction moot because it could not find as a
matter of law that it is absolutely clear that the alleged behavior could not recur. Jacobsen,
2007 WL 2358628 at *5. We agree that this matter is not moot. See also Adarand
Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (AVoluntary cessation of challenged
conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.@ (emphasis in original)).
_._
                Jacobsen moved for a preliminary injunction, arguing that the violation of the terms
of the Artistic License constituted copyright infringement and that, under Ninth Circuit law,
irreparable harm could be presumed in a copyright infringement case. The District Court
reviewed the Artistic License and determined that ADefendants' alleged violation of the
conditions of the license may have constituted a breach of the nonexclusive license, but
does not create liability for copyright infringement where it would not otherwise exist.@ Id. at
*7. The District Court found that Jacobsen had a cause of action only for breach of
contract, rather than an action for copyright infringement based on a breach of the
conditions of the Artistic License. Because a breach of contract creates no presumption of
irreparable harm, the District Court denied the motion for a preliminary injunction.
                Jacobsen appeals the finding that he does not have a cause of action for copyright
infringement. Although an appeal concerning copyright law and not patent law is rare in our
Circuit, here we indeed possess appellate jurisdiction. In the district court, Jacobsen's
operative complaint against Katzer/Kamind included not only his claim for copyright
infringement, but also claims seeking a declaratory judgment that a patent issued to Katzer
is not infringed by Jacobsen and is invalid. Therefore the complaint arose in part under the
patent laws. See 28 U.S.C. 2201(a); Golan v. Pingel Enter., 310 F.3d 1360, 1367 (Fed.
Cir. 2002) (explaining that "[i]n the context of a complaint seeking a declaration of
noninfringement, the action threatened by the declaratory defendant . . . would be an action
for patent infringement," and "[s]uch an action clearly arises under the patent laws"). Thus
the district court's jurisdiction was based, at least in part, on 28 U.S.C. 1338(a) as it
relates to the patent laws, and we have appellate jurisdiction under 28 U.S.C. 1292(c)(1).
  See 28 U.S.C. 1338(a) ("The district courts shall have original jurisdiction of any civil
action arising under any Act of Congress relating to patents, plant variety protection,
copyrights and trademarks."); id. at 1295(a)(1) (The Federal Circuit shall have exclusive
jurisdiction "of an appeal from a final decision of a district court of the United States" if (1)
"the jurisdiction of that court was based, in whole or in part, on section 1338 of this title" and
(2) the case is not "a case involving a claim arising under any Act of Congress relating to
copyrights, exclusive rights in mask works, or trademarks and no other claims under
section 1338(a)."); id. at 1292(c)(1) (Federal Circuit shall have jurisdiction over appeals
from interlocutory orders of the district courts refusing injunctions "in any case over which
the court would have jurisdiction of an appeal under section 1295").
                                                                                        II.
                  This Court looks to the interpretive law of the regional circuit for issues not
exclusively assigned to the Federal Circuit. Hutchins v. Zoll Med. Corp., 492 F.3d 1377,
1383 (Fed. Cir. 2007). Under Ninth Circuit law, an order granting or denying a preliminary
injunction will be reversed only if the district court relied on an erroneous legal premise or
abused its discretion. Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981). A district
court=s order denying a preliminary injunction is reversible for factual error only when the
district court rests its conclusions on clearly erroneous findings of fact. Sports Form, Inc. v.
United Press Int=l, Inc., 686 F.2d 750, 753 (9th Cir. 1982).
                  In determining whether to issue a preliminary injunction, the Ninth Circuit requires
demonstration of (1) a combination of probability of success on the merits and the
possibility of irreparable harm; or (2) serious questions going to the merits where the
balance of hardships tips sharply in the moving party=s favor. Perfect 10, Inc. v.
Amazon.com, Inc., 487 F.3d 701, 713-14 (9th Cir. 2007); Dep=t of Parks & Recreation v.
Bazaar Del Mundo, Inc., 448 F.3d 1118, 1123 (9th Cir. 2006). In cases involving copyright
claims, where a copyright holder has shown likelihood of success on the merits of a
copyright infringement claim, the Ninth Circuit has held that irreparable harm is presumed.
LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150, 1155-56 (9th Cir. 2006).
But see MGM Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197, 1212 (C.D. Cal. 2007)
(noting that "the longstanding rule that irreparable harm can be a presumed after a showing
of likelihood of success for purposes of a copyright preliminary injunction motion may itself
have to be reevaluated in light of eBay [Inc. v. MercExchange, L.L.C., 547 U.S. 388
(2006)]"). Thus, for a preliminary injunction to issue, Jacobsen must either show (1) a
likelihood of success on the merits of his copyright infringement claim from which
irreparable harm is presumed; or (2) a fair chance of success on the merits and a clear
disparity in the relative hardships that tips sharply in his favor.
                                                                                        A.
                  Public licenses, often referred to as Aopen source@ licenses, are used by artists,
authors, educators, software developers, and scientists who wish to create collaborative
projects and to dedicate certain works to the public. Several types of public licenses have
been designed to provide creators of copyrighted materials a means to protect and control
their copyrights. Creative Commons, one of the amici curiae, provides free copyright
licenses to allow parties to dedicate their works to the public or to license certain uses of
their works while keeping some rights reserved.
                  Open source licensing has become a widely used method of creative collaboration
that serves to advance the arts and sciences in a manner and at a pace that few could
have imagined just a few decades ago. For example, the Massachusetts Institute of
Technology (AMIT@) uses a Creative Commons public license for an OpenCourseWare
project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux
operating system, the Perl programming language, the Apache web server programs, the
Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia.
Creative Commons notes that, by some estimates, there are close to 100,000,000 works
licensed under various Creative Commons licenses. The Wikimedia Foundation, another of
the amici curiae, estimates that the Wikipedia website has more than 75,000 active
contributors working on some 9,000,000 articles in more than 250 languages.
              Open Source software projects invite computer programmers from around the world
to view software code and make changes and improvements to it. Through such
collaboration, software programs can often be written and debugged faster and at lower
cost than if the copyright holder were required to do all of the work independently. In
exchange and in consideration for this collaborative work, the copyright holder permits
users to copy, modify and distribute the software code subject to conditions that serve to
protect downstream users and to keep the code accessible. 2 By requiring that users copy
and restate the license and attribution information, a copyright holder can ensure that
recipients of the redistributed computer code know the identity of the owner as well as the
scope of the license granted by the original owner. The Artistic License in this case also
requires that changes to the computer code be tracked so that downstream users know
what part of the computer code is the original code created by the copyright holder and
what part has been newly added or altered by another collaborator.
_._
main text continued after this Footnote 2
                                For example, the GNU General Public License, which is used for the Linux
operating system, prohibits downstream users from charging for a license to the software.
See Wallace v. IBM Corp., 467 F.3d 1104, 1105-06 (7th Cir. 2006).
_._
              Traditionally, copyright owners sold their copyrighted material in exchange for
money. The lack of money changing hands in open source licensing should not be
presumed to mean that there is no economic consideration, however. There are
substantial benefits, including economic benefits, to the creation and distribution of
copyrighted works under public licenses that range far beyond traditional license royalties.
For example, program creators may generate market share for their programs by providing
certain components free of charge. Similarly, a programmer or company may increase its
national or international reputation by incubating open source projects. Improvement to a
product can come rapidly and free of charge from an expert not even known to the
copyright holder. The Eleventh Circuit has recognized the economic motives inherent in
public licenses, even where profit is not immediate. See Planetary Motion, Inc. v.
Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir. 2001) (Program creator Aderived value
from the distribution [under a public license] because he was able to improve his Software
based on suggestions sent by end-users. . . . It is logical that as the Software improved,
more end-users used his Software, thereby increasing [the programmer=s] recognition in his
profession and the likelihood that the Software would be improved even further.@).
                                                                                            B.
              The parties do not dispute that Jacobsen is the holder of a copyright for certain
materials distributed through his website. 3 Katzer/Kamind also admits that portions of the
DecoderPro software were copied, modified, and distributed as part of the Decoder
Commander software. Accordingly, Jacobsen has made out a prima facie case of
copyright infringement. Katzer/Kamind argues that they cannot be liable for copyright
_._
main text continued after this Footnote 3
                              Jacobsen=s copyright registration creates the presumption of a valid copyright.
_._
infringement because they had a license to use the material. Thus, the Court must
evaluate whether the use by Katzer/Kamind was outside the scope of the license. See
LGS Architects, 434 F.3d at 1156. The copyrighted materials in this case are
downloadable by any user and are labeled to include a copyright notification and a
COPYING file that includes the text of the Artistic License. The Artistic License grants
users the right to copy, modify, and distribute the software:
                provided that [the user] insert a prominent notice in each changed file stating
                how and when [the user] changed that file, and provided that [the user] do at
                least ONE of the following:
                a) place [the user=s] modifications in the Public Domain or otherwise make
                them Freely Available, such as by posting said modifications to Usenet or an
                equivalent medium, or placing the modifications on a major archive site such
                as ftp.uu.net, or by allowing the Copyright Holder to include [the user=s]
                modifications in the Standard Version of the Package.
                b) use the modified Package only within [the user=s] corporation or
                organization.
                c) rename any non-standard executables so the names do not conflict with
                the standard executables, which must also be provided, and provide a
                separate manual page for each nonstandard executable that clearly
                documents how it differs from the Standard Version, or
                d) make other distribution arrangements with the Copyright Holder.
                The heart of the argument on appeal concerns whether the terms of the Artistic
License are conditions of, or merely covenants to, the copyright license. Generally, a
Acopyright owner who grants a nonexclusive license to use his copyrighted material waives
his right to sue the licensee for copyright infringement@ and can sue only for breach of
contract. Sun Microsystems, Inc., v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999);
Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998). If, however, a license is limited in
scope and the licensee acts outside the scope, the licensor can bring an action for
  See, e.g., Triad Sys. Corp. V. Se. Exp. Co., 64 F.3d 1330, 1335 (9th Cir. 1995).
copyright infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th
Cir.1989); Nimmer on Copyright, ' 1015[A] (1999).
                Thus, if the terms of the Artistic License allegedly violated are both covenants and
conditions, they may serve to limit the scope of the license and are governed by copyright
law. If they are merely covenants, by contrast, they are governed by contract law. See
Graham, 144 F.3d at 236-37 (whether breach of license is actionable as copyright
infringement or breach of contract turns on whether provision breached is condition of the
license, or mere covenant); Sun Microsystems, 188 F.3d at 1121 (following Graham;
independent covenant does not limit scope of copyright license). The District Court did not
expressly state whether the limitations in the Artistic License are independent covenants or,
rather, conditions to the scope; its analysis, however, clearly treated the license limitations
as contractual covenants rather than conditions of the copyright license. 4
                Jacobsen argues that the terms of the Artistic License define the scope of the
license and that any use outside of these restrictions is copyright infringement.
Katzer/Kamind argues that these terms do not limit the scope of the license and are merely
covenants providing contractual terms for the use of the materials, and that his violation of
them is neither compensable in damages nor subject to injunctive relief. Katzer/Kamind=s
argument is premised upon the assumption that Jacobsen=s copyright gave him no
economic rights because he made his computer code available to the public at no charge.
From this assumption, Katzer/Kamind argues that copyright law does not recognize a
_._
main text continued after this Footnote 4
                              The District Court held that ADefendants' alleged violation of the conditions of
the license may have constituted a breach of the nonexclusive license . . . [and] the Court
finds that Plaintiff's claim properly sounds in contract.@ Jacobsen, 2007 WL 2358628 at *7.
Thus, despite the use of the word Aconditions,@ the District Court treated the terms of the
Artistic License as contractual covenants which did not limit the scope of the license.
_._
cause of action for non-economic rights, relying on Gilliam v. ABC, 538 F.2d 14, 20-21 (2d
Cir. 1976) (AAmerican copyright law, as presently written, does not recognize moral rights
or provide a cause of action for their violation, since the law seeks to vindicate the
economic, rather than the personal rights of authors.@). The District Court based its opinion
on the breadth of the Artistic License terms, to which we now turn.
                                                                                                  III.
                The Artistic License states on its face that the document creates conditions: AThe
intent of this document is to state the conditions under which a Package may be copied.@
(Emphasis added.) The Artistic License also uses the traditional language of conditions by
noting that the rights to copy, modify, and distribute are granted Aprovided that@ the
conditions are met. Under California contract law, Aprovided that@ typically denotes a
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911) (interpreting a real property
lease reciting that when the property was sold, Athis lease shall cease and be at an end,
provided that the party of the first part shall then pay [certain compensation] to the party of
the second part@; considering the appellant=s Ainteresting and ingenious@ argument for
interpreting this language as creating a mere covenant rather than a condition; and holding
that this argument Acannot change the fact that, attributing the usual and ordinary
signification to the language of the parties, a condition is found in the provision in question@)
(emphases added).
                The conditions set forth in the Artistic License are vital to enable the copyright holder
to retain the ability to benefit from the work of downstream users. By requiring that users
who modify or distribute the copyrighted material retain the reference to the original source
files, downstream users are directed to Jacobsen=s website. Thus, downstream users
know about the collaborative effort to improve and expand the SourceForge project once
they learn of the Aupstream@ project from a Adownstream@ distribution, and they may join in
that effort.
                The District Court interpreted the Artistic License to permit a user to Amodify the
material in any way@ and did not find that any of the Aprovided that@ limitations in the Artistic
License served to limit this grant. The District Court=s interpretation of the conditions of the
Artistic License does not credit the explicit restrictions in the license that govern a
downloader=s right to modify and distribute the copyrighted work. The copyright holder here
expressly stated the terms upon which the right to modify and distribute the material
depended and invited direct contact if a downloader wished to negotiate other terms.
These restrictions were both clear and necessary to accomplish the objectives of the open
source licensing collaboration, including economic benefit. Moreover, the District Court did
not address the other restrictions of the license, such as the requirement that all
modification from the original be clearly shown with a new name and a separate page for
any such modification that shows how it differs from the original.
                Copyright holders who engage in open source licensing have the right to control the
modification and distribution of copyrighted material. As the Second Circuit explained in
Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the Aunauthorized editing of the underlying
work, if proven, would constitute an infringement of the copyright in that work similar to any
other use of a work that exceeded the license granted by the proprietor of the copyright.@
Copyright licenses are designed to support the right to exclude; money damages alone do
not support or enforce that right. The choice to exact consideration in the form of
compliance with the open source requirements of disclosure and explanation of changes,
rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed,
because a calculation of damages is inherently speculative, these types of license
restrictions might well be rendered meaningless absent the ability to enforce through
injunctive relief.
                In this case, a user who downloads the JMRI copyrighted materials is authorized to
make modifications and to distribute the materials Aprovided that@ the user follows the
restrictive terms of the Artistic License. A copyright holder can grant the right to make
certain modifications, yet retain his right to prevent other modifications. Indeed, such a
goal is exactly the purpose of adding conditions to a license grant. 5 The Artistic License,
like many other common copyright licenses, requires that any copies that are distributed
contain the copyright notices and the COPYING file. See, e.g., 3-10 Nimmer on Copyright
' 10.15 (AAn express (or possibly an implied) condition that a licensee must affix a proper
copyright notice to all copies of the work that he causes to be published will render a
publication devoid of such notice without authority from the licensor and therefore, an
infringing act.@).
                It is outside the scope of the Artistic License to modify and distribute the copyrighted
materials without copyright notices and a tracking of modifications from the original
computer files. If a downloader does not assent to these conditions stated in the COPYING
_._
main text continued after this Footnote 5
                                  Open source licensing restrictions are easily distinguished from mere Aauthor
attribution@ cases. Copyright law does not automatically protect the rights of authors to
credit for copyrighted materials. See Gilliam, 538 F.2d at 20-21 ("American copyright law,
as presently written, does not recognize moral rights or provide a cause of action for their
violation, since the law seeks to vindicate the economic, rather than the personal rights of
authors."); Graham, 144 F.3d at 236. Whether such rights are protected by a specific
license grant depends on the language of the license. See County of Ventura v. Blackburn,
362 F.2d 515, 520 (9th Cir. 1966) (copyright infringement found where the county removed
copyright notices from maps licensed to it where the license granted the county Athe right to
obtain duplicate tracings@ from photographic negatives that contained copyright notices).
_._
file, he is instructed to Amake other arrangements with the Copyright Holder.@
Katzer/Kamind did not make any such Aother arrangements.@ The clear language of the
Artistic License creates conditions to protect the economic rights at issue in the granting of
a public license. These conditions govern the rights to modify and distribute the computer
programs and files included in the downloadable software package. The attribution and
modification transparency requirements directly serve to drive traffic to the open source
incubation page and to inform downstream users of the project, which is a significant
economic goal of the copyright holder that the law will enforce. Through this controlled
spread of information, the copyright holder gains creative collaborators to the open source
project; by requiring that changes made by downstream users be visible to the copyright
holder and others, the copyright holder learns about the uses for his software and gains
others= knowledge that can be used to advance future software releases.
                                                                                          IV.
              For the aforementioned reasons, we vacate and remand. While Katzer/Kamind
appears to have conceded that they did not comply with the aforedescribed conditions of
the Artistic License, the District Court did not make factual findings on the likelihood of
success on the merits in proving that Katzer/Kamind violated the conditions of the Artistic
License. Having determined that the terms of the Artistic License are enforceable copyright
conditions, we remand to enable the District Court to determine whether Jacobsen has
demonstrated (1) a likelihood of success on the merits and either a presumption of
irreparable harm or a demonstration of irreparable harm; or (2) a fair chance of success on
the merits and a clear disparity in the relative hardships and tipping in his favor. 6
              The judgment of the District Court is vacated and the case is remanded for further
proceedings consistent with this opinion.
                                                                VACATED and REMANDED
_._
main text continued after this Footnote 6
                              At oral argument, the parties admitted that there might be no way to calculate
any monetary damages under a contract theory.

HERE COME THE SLASHDOT LAWYERS (-1, Troll)

Anonymous Coward | more than 5 years ago | (#24588973)

wank wank wank

Smack down (4, Informative)

tjstork (137384) | more than 5 years ago | (#24588985)

Katzer and company really need to be smacked down.

On their web site, they try to create the impression that they had their own solution and didn't copy any code from the open source guys, but, then, in court, they fully admit that they in fact, did that.

So, they stole a bunch of code, made some money on it, then, they admitted it in court, but continue to lie to the public about what they did.

I mean, how sickening is that?

Re:Smack down (5, Informative)

mrchaotica (681592) | more than 5 years ago | (#24589183)

It's not even just that: Katzer also went and got patents over the concepts expressed in JMRI, which were only granted because he failed to disclose JMRI's prior art to the patent office, and then sued the JMRI people for infringement of their own code!

The open source guys didn't even start this; Katzer did. He brought it upon himself!

JMRI has a long and detailed page [sourceforge.net] describing what happened. I highly recommend everyone reading it; it's amazing how brazenly this prick Katzer (and his lawyer) tried to rip everybody off.

Re:Smack down (3, Insightful)

jasper (12212) | more than 5 years ago | (#24589859)

How bad is our legal system when Kratzer can lie cheat and steal, then require others to spend large amounts of time and money to defend their creation?

Thankfully justice is achieved in the end... but it's not even over, theres still motions in the court system. Put this guy in jail already.

Re:Smack down (4, Informative)

smellsofbikes (890263) | more than 5 years ago | (#24590243)

What justice?
Bob Jacobsen has paid Katzer $30,000 in judgments [sourceforge.net] against Jacobsen, as well as his own legal fees. Katzer's made money off his product and gotten his legal costs paid for, and as I read the judgments, has yet to actually lose anything other than three of his 12 patents.
Katzer isn't winning, but JMRI is suffering a lot more than Katzer is.

I'm glad the court ruled the way it did but a lot of JMRI people have gotten pretty badly ground up along the way. This is only justice insofar as the rest of FOSS has dodged a bullet.

A rip-off artist gets his just reward (1)

davide marney (231845) | more than 5 years ago | (#24591235)

Reading the tortured history of this case was a real eye-opener. I hadn't really thought about the lengths that some people will apparently go to steal from the community, lie to regulators, and engage in what must have been a very expensive legal fight.

All that for model railroad software?

I am so thankful we have the legal support to fight and win these kinds of battles. Thanks to all involved for sticking up for all our rights.

Re:A rip-off artist gets his just reward (2, Interesting)

_Sprocket_ (42527) | more than 5 years ago | (#24592193)

Reading the tortured history of this case was a real eye-opener. I hadn't really thought about the lengths that some people will apparently go to steal from the community, lie to regulators, and engage in what must have been a very expensive legal fight.

You've got to wonder what the motivation is. Is there really that much money in model train software? Or is this someone who has money to throw at whatever they want?

Dig around a bit... and you find some interesting things.

It seems Katzer and his parnter [ingoodtastestore.com] have made a sizable donation to the University of Oregon in the tune of "$1.25 million [uoregon.edu] for computer labs, software and a technology endowment fund." That's a nice chunk of change to throw around. Where does it come from?

It's interesting to note that Katzer shows up in a number of roles from software development to a model train store. I suspect ongoing concerns are something along the lines of his LinkedIn profile [linkedin.com] :

Matt Katzerâ(TM)s Summary

KAMIND Associates delivers Microsoft solutions for small business customers since 1998. We solve your IT problems with the following solutions â" eCommerce sites for samll business using Microsoft Commerce Servers, Microsoft Small Business Server and Microsoft Retail Management System (POS) Solutions for specialty retailers. 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.

That seems pretty straight forward. But there's some other oddities out there. Take this blog entry [msdn.com] of a Microsoft manager for example:

Matt Katzer runs an ISV called KAM Industries. They build software for the REALLY big railroads - railroad yard automation, engine automation, that kind of thing. Software that makes really big, heavy stuff move when and where itâ(TM)s supposed to. Matt told me that they also do similar stuff for model railroads â" HO, N, and O-scale stuff. They can completely automate, and simulate very complex setups.

If that werenâ(TM)t cool enough, Matt has built all this on top of Microsoft technologies - .NET Framework, the Compact Framework, WMI (okay, not REALLY MS tech, but it counts), XML, Windows Server 2003, etc.

Eh, what? Is this more than model trains or was Katzer simply exaggerating to impress?

Side note is a comment on the blog:

Matt Katzer was my first manager at Intel and the reason that I moved out to Oregon to work for Intel.

Re:Smack down (0, Flamebait)

the_humeister (922869) | more than 5 years ago | (#24590071)

Man, this Katzer person seems to be the biggest A-hole ever. The only thing worse would be if he'd murdered his wife...

Re:Smack down (-1, Flamebait)

idontgno (624372) | more than 5 years ago | (#24590211)

The only thing worse would be if he'd murdered his wife...

Or tried to foist some %DEITY%-awful POS file system on the community or something...

Re:Smack down (1)

swillden (191260) | more than 5 years ago | (#24590631)

It's almost like Katzer set out with the intention of establishing precedents that would protect open source software licenses.

Re:Smack down (1)

mrchaotica (681592) | more than 5 years ago | (#24592749)

Not really; if that were the case then he would have skipped straight to the litigation instead of harassing Bob Jacobsen (the primary JMRI guy) through his employer by filing a FOIA request claiming that he worked on JMRI at work (Lawrence Berkeley National Laboratory). Instead, Katzer is a genuine greedy asshole.

Proof: Patents are ruining innovation in America (1)

MacDork (560499) | more than 5 years ago | (#24591141)

It's not even just that: Katzer also went and got patents over the concepts expressed in JMRI, which were only granted because he failed to disclose JMRI's prior art to the patent office, and then sued the JMRI people for infringement of their own code!

It would be nice if the OSS community chould foot the bill for a few high profile ads publicizing this case, and specifically Katzer's actions. It would go a long way toward creating awareness about the software patent process and how badly it is failing.

Re:Smack down (1)

Anonymous Coward | more than 5 years ago | (#24591207)

Why don't you tell him what you think: webmaster@kamind.com

Which version? (5, Interesting)

FilterMapReduce (1296509) | more than 5 years ago | (#24589549)

It is interesting that the Artistic License has passed a legal test of sorts, considering that it has been criticized as one of the more shoddily-written licenses out there—at least, version 1.0. I mean, look at this (from the "Definitions" section of 1.0):

"You" is you, if you're thinking about copying or distributing this Package.

That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves. Also, the license is automatically binding for anyone who is thinking about using the license? Compare to a Creative Commons license, where

"You" means an individual or entity exercising rights under this License...

You'd think programmers would know better than to let ambiguities like that by. (And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road.)

Re:Which version? (2, Insightful)

mrchaotica (681592) | more than 5 years ago | (#24589677)

That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves.

What did you expect? The name of the thing is a pun!

Re:Which version? (1)

TheRaven64 (641858) | more than 5 years ago | (#24590955)

And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road

Have you read the same GPL as me? The GNU one? The one that is several pages of convoluted legalese (not quite as bad as the MPL, but close), written by a lawyer (who then went on to write the CC licenses you seem to think so highly of)?

Re:Which version? (1)

FilterMapReduce (1296509) | more than 5 years ago | (#24591771)

The one that is several pages of convoluted legalese...

Convoluted language != convoluted legalese.

...written by a lawyer (who then went on to write the CC licenses you seem to think so highly of)?

Which lawyer is this? The GPL and the CC licenses are both written collaboratively. The authorship of the GPL is overseen by Richard Stallman (and if Wikipedia is correct, he was the sole author of version 1), who is not a lawyer and wants nothing to do with Creative Commons.

Now we're on Track (4, Funny)

dmomo (256005) | more than 5 years ago | (#24589577)

This is rail nice. I do believe open licenses are at a critical junction. Kamind certainly bit off more than they can choo.

Re:Now we're on Track (3, Funny)

dmomo (256005) | more than 5 years ago | (#24589649)

I should have posted this anonymously. I'm a freight of getting modded down.

Rail? (0)

Anonymous Coward | more than 5 years ago | (#24591403)

Well, at least you didn't mention Ruby.

Well, duh. (0, Offtopic)

afabbro (33948) | more than 5 years ago | (#24590801)

The U.S. Court of Appeals for the Federal Circuit (an authoritative court

Well thanks, dilute - I always thought the U.S. Court of Appeals for the Circuit Court was just a joke that everyone laughed off. Now I see it's an authoritative court.

Anyone know how precedent works for this? (1)

harlows_monkeys (106428) | more than 5 years ago | (#24591153)

Note that this is a copyright decision, by the CAFC, which normally does not handle copyright cases. They had subject jurisdiction here because it was also a patent case, and that is something they have jurisdiction over.

So how does this fit in as precedent? In future copyright cases, that do NOT have that patent component that gives CAFC jurisdiction for the appeal, does the district court follow the precedent of the appeals court for the circuit it is in, or this CAFC decision?

Re:Anyone know how precedent works for this? (2, Informative)

Todd Knarr (15451) | more than 5 years ago | (#24591747)

This holding wouldn't be controlling outside the Federal Circuit, but it'd be considered very persuasive. Basically having two Appeals Courts make contradictory rulings is one of the fastest ways to get the Supreme Court to take the appeal and resolve the conflict, and the only constant there is that if that happens at least one of the Appeals Courts will be told they were wrong. So Appeals Courts try not to make contradictory rulings. And District Court judges try not to make rulings that their controlling Appeals Court will have to overturn. Seeing as how the Federal Circuit appeals court isn't the 9th Circuit one, I'd expect most district courts to take their cue from this ruling. Especially given how clear the CAFC ruling is. Few judges would like to explain in a ruling why they're disregarding the plain language used in a license despite an Appeals Court ruling saying that that language means exactly what it says.

What about the $30,000? (4, Insightful)

loshwomp (468955) | more than 5 years ago | (#24591255)

I want to know if Bob Jacobsen got his $30,000 (legal fees paid to the scum suckers) back.

Re:What about the $30,000? (3, Informative)

rahvin112 (446269) | more than 5 years ago | (#24592789)

Don't worry, with this ruling he will. He's now eligible for disgorgement of profits, statutory damages, punitive awards, legal fees and expenses. I imagine the legal expenses alone is going to be rather massive but tack in a few statutory damages at $150K per violation (for every single file they stripped the copyright notice from which exceeds 300 files by my reading of the JMRI site and possibly each of these violations applies for each distribution of Katzer's product so if he sold 10 copies he's on the hook for 3000 violations of copyright). Jacobsen's not going to end up with millions but my guess is Jacobsen is going to get back every dime he spent probably three times over and he won't be paying any legal bills. My hope is they can destroy Katzer financially, his behavior is reprehensible and he should be punished for it.

Keep following the Saga though, this Katzer guy is as slimy as SCO. He'll probably try to fend off any judgement with Bankruptcy just like SCO.

A quick shout out to RMS (2, Insightful)

Broofa (541944) | more than 5 years ago | (#24594011)

While discussing (and rejoicing) in this decision, I'd suggest we all say thank you to Richard Stallman [wikipedia.org] for his work on "copyleft" licensing. It is possibly the single greatest innovation in modern software development and, without it, our world would be a darker, more depressing place.

RMS, you rock dude!

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