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An Open Source Legal Breakthrough

kdawson posted more than 5 years ago | from the gpl-means-what-it-says dept.

Software 292

jammag writes "Open source advocate Bruce Perens writes in Datamation about a major court victory for open source: 'An appeals court has erased most of the doubt around Open Source licensing, permanently, in a decision that was extremely favorable toward projects like GNU, Creative Commons, Wikipedia, and Linux.' The case, Jacobsen v. Katzer, revolved around free software coded by Bob Jacobsen that Katzer used in a proprietary application and then patented. When Katzer started sending invoices to Jacobsen (for what was essentially Jacobsen's own work), Jacobsen took the case to court and scored a victory that — for the first time — lays down a legal foundation for the protection of open source developers. The case hasn't generated as many headlines as it should."

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I'm trusting the summary this time (4, Funny)

ccguy (1116865) | more than 5 years ago | (#25246617)

And the second link is the reason why.

Same as going into a morgue usually is a good test for students considering a medical career, this link is a perfect test for lawyers wanna be's.

Re:I'm trusting the summary this time (4, Funny)

nomadic (141991) | more than 5 years ago | (#25246817)

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

Re:I'm trusting the summary this time (5, Informative)

nomadic (141991) | more than 5 years ago | (#25247329)

Actually I spoke too soon, the more I read it the less accurate the summary is. I should have known I was giving a coder too much credit for legal analysis (no offense, coders, but you yell at lawyers and judges for faulty technology analysis all the time). It may be splitting hairs, but the court here wasn't looking at whether open source license provisions were enforceable in general (in fact both parties seemed to recognize that they were), but whether violating those terms falls under copyright law protection.

The court here is simply being asked to determine whether violating an open source license agreement constitutes copyright infringement. If it does, then the trial court can enjoin the defendant from infringing. If it doesn't, then the defendant's remedy is seek damages under contract law. If damages are his only remedy, however, then the court isn't supposed to grant injunctions. Even if the trial court had been upheld, that doesn't mean that open source licenses would have been invalidated, just that violating the terms of the license didn't infringe a copyright, but rather a contract.

Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights. The appellate court disagreed, and explicitly recognized that an open source licensor does gain an economic benefit from releasing open source software, in terms of such things as better reputation, business opportunities, and the improvement of the released software. The main point of the opinion is therefore that going beyond the terms of the license is a copyright violation, and therefore all the legal remedies for copyright violations are available.

Re:I'm trusting the summary this time (1)

nomadic (141991) | more than 5 years ago | (#25247445)

If it does, then the trial court can enjoin the defendant from infringing. If it doesn't, then the defendant's remedy is seek damages under contract law.

That should read "the plaintiff's remedy."

Re:I'm trusting the summary this time (5, Interesting)

Sloppy (14984) | more than 5 years ago | (#25247731)

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

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

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

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

YEESSSSSS (1)

LogicallyGenius (916669) | more than 5 years ago | (#25247393)

NEW NEW NEW now thats called an NEW WORLD ORDER i mean in a correct context [:)]

Re:I'm trusting the summary this time (0)

Anonymous Coward | more than 5 years ago | (#25247087)

http://jmri.sourceforge.net/k/index.html

Wow a truly profane injustice defeated. (5, Insightful)

GlobalColding (1239712) | more than 5 years ago | (#25246655)

Damn good precedent set. Although, the guy who patented the other fellas work and tried to charge him for it should have been clubbed like a baby seal or dunked in a vat of whale spunk.

Re:Wow a truly profane injustice defeated. (3, Funny)

garett_spencley (193892) | more than 5 years ago | (#25246791)

"or dunked in a vat of whale spunk."

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

Re:Wow a truly profane injustice defeated. (4, Funny)

jeffmeden (135043) | more than 5 years ago | (#25246959)

"or dunked in a vat of whale spunk."

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

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

Re:Wow a truly profane injustice defeated. (2, Funny)

Phrogman (80473) | more than 5 years ago | (#25247425)

Hey at least he most likely works in the IT department there, not in Production "shudder"...

Re:Wow a truly profane injustice defeated. (4, Funny)

ObiWanKenblowme (718510) | more than 5 years ago | (#25247739)

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

Re:Wow a truly profane injustice defeated. (5, Funny)

halcyon1234 (834388) | more than 5 years ago | (#25247541)

dunked in a vat of whale spunk.

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

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

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

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

Finally! (5, Insightful)

CPNABEND (742114) | more than 5 years ago | (#25246659)

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

Open source people are greedy too. (3, Insightful)

tjstork (137384) | more than 5 years ago | (#25246845)

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

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

Re:Open source people are greedy too. (0, Troll)

Microlith (54737) | more than 5 years ago | (#25246977)

But he didn't -lose- anything!

How can you call it stealing when nothing was actually lost!

Slashdot doesn't get to play semantic games just 'cause it's their pet software license.

Stole freedom. (4, Insightful)

tjstork (137384) | more than 5 years ago | (#25247019)

But he didn't -lose- anything

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

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

Re:Stole freedom. (4, Insightful)

Anonymous Coward | more than 5 years ago | (#25247235)

Not to nitpick, but it isn't theft. Its copyright infringement. For theft to occur the originator must no longer have access to the original property.

Although through the act of trying to use patents to shut down the source, it approximates theft. Although its probably more of an abuse of patent law in this case.

Its the same argument about file sharers. They are not stealing, they are infringing upon copyright. Theres a big difference.

Re:Stole freedom. (4, Insightful)

Dog-Cow (21281) | more than 5 years ago | (#25247451)

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

Re:Stole freedom. (1)

Anonymous Coward | more than 5 years ago | (#25247653)

There was theft in the fact that they patented his work and tried to charge him to use it. This made it unavailable to him, which under your definition is theft.

Re:Stole freedom. (5, Insightful)

orclevegam (940336) | more than 5 years ago | (#25247333)

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

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

Re:Stole freedom. (1)

francium de neobie (590783) | more than 5 years ago | (#25247509)

The author was *deprived* of his freedoms, and same for the legitimate users of his open source software. This is not the same as steal, however - the asshole who filed the patent does not gain the same kind of freedom as the open source community and the original author.

Re:Open source people are greedy too. (4, Informative)

malkavian (9512) | more than 5 years ago | (#25247085)

From the definition of stealing that says "to take somebody's work and pass it off as your own".
I think this fits case fits the definition of stealing quite nicely.

Re:Open source people are greedy too. (1, Informative)

samkass (174571) | more than 5 years ago | (#25247101)

Because that's not the definition of "steal". Slashdot loves to try to assert the semantic fallacy that it's not stealing if no one loses anything.

From m-w.com:
Steal: [...] transitive verb 1 a: to take or appropriate without right or leave and with intent to keep or make use of wrongfully
Appropriate: [...] 3 : to take or make use of without authority or right

One can debate "wrongfully" in some usages of "steal", but in this case I think it's pretty clear it was "Made use of without authority and wrongfully". Thus stealing.

Re:Open source people are greedy too. (2, Insightful)

EasyTarget (43516) | more than 5 years ago | (#25247465)

The problem is that the words themselves come from a time when stealing/thieving by definition meant that you deprived the original owner of the use of their property.

But copying, where the original owner still has a perfect and fully functional object.. is different.

It might still be very, very wrong, but there is a definite difference on the effect upon the property owner.

It's not wrong to emphasis this point. It's only the artificial concept of 'Intellectual Property' that has blurred the line. Our ancestors did not really care when 'Urk' stole the idea of banging rocks together from 'Grok', but they probably did care when Urk stole Groks' rocks.

Look more carefully (4, Insightful)

Anonymous Coward | more than 5 years ago | (#25247171)

I'm all for turning the tables on Slashdot vocabulary peeves, but in this case he really did lose something. Lacking this ruling, if he had not paid the license fee he would not be able to use his own code. Thus he would have been deprived of something he once possessed. Just because the case involves intellectual property doesn't mean that it's the same as copyright infringement.

Re:consideration (1)

Migraineman (632203) | more than 5 years ago | (#25247399)

The court handed down a ruling [sourceforge.net] that "exchange of money" isn't the only form of consideration, especially in an Open Source environment:

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.

So the courts appear to disagree with your assertion that he didn't "lose" anything.

Re:Open source people are greedy too. (2, Insightful)

element-o.p. (939033) | more than 5 years ago | (#25247757)

<throws karma to the wind>

The fact that PP was modded troll just shows how much of a double standard there is on /. If filesharers aren't "stealing" music and movies then how could Katzer have "stolen" the code from Jacobsen, unless they physically removed copies of the code from his possession? If Katzer "stole" the code from Jacobsen, then how can you seriously maintain that filesharers aren't "stealing" from musicians and record companies?

What Katzer did was despicable and unethical, but it's no more stealing than downloading music from TPB -- it's a violation of license agreements.

The closest thing to theft that occurred in this case is when Katzer tried to charge Jacobsen for the code that he wrote, but I would say that is more akin to extortion than theft ("We have deeper pockets so we can afford better lawyers. Pay us now, or we'll take you to court and bankrupt you.")...but take all of this with a healthy dose of NaCl, since IANAL, etc.

Re:Open source people are greedy too. (2, Insightful)

MightyMartian (840721) | more than 5 years ago | (#25246987)

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

But you are right, this isn't so much a victory for open source, as a victory against a thief and a fraud. Even if the guy had released his work into the public domain, no one can simply patent it and then send the original creator a bill. To my mind this should have been much more than a civil case, it should have been a mail fraud case, since I'm assuming what amounted to fraudulent invoices were stuck in the mail.

Re:Open source people are greedy too. (1)

riceboy50 (631755) | more than 5 years ago | (#25247291)

victory against a copyright infringer

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

Re:Open source people are greedy too. (4, Insightful)

orclevegam (940336) | more than 5 years ago | (#25247413)

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

Re:Open source people are greedy too. (2, Informative)

erroneus (253617) | more than 5 years ago | (#25247095)

You cannot steal copyrighted material. It is infringed upon. Only physical objects can be stolen.

When people put their work under an open source license, they do so with the intent and purpose of sharing. When someone infringes on that intent, it makes people angry. It's not greed as much as it is being offended and abused.

Re:Open source people are greedy too. (0, Redundant)

Silicon Jedi (878120) | more than 5 years ago | (#25247233)

You are erroneus.

Re:Open source people are greedy too. (2, Insightful)

Sj0 (472011) | more than 5 years ago | (#25247275)

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

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

Re:Open source people are greedy too. (5, Insightful)

illegalcortex (1007791) | more than 5 years ago | (#25247295)

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

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

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

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

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

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

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

Re:Open source people are greedy too. (4, Informative)

PunkOfLinux (870955) | more than 5 years ago | (#25247545)

The GPL *specifically* says you can sell it. Check section 1; "You may charge a fee for the physical act of transferring a copy." It says NOTHING about 'breaking even' on CD-R.

Re:Open source people are greedy too. (1)

Hairy Heron (1296923) | more than 5 years ago | (#25247789)

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

*facepalm* Have you actually read the GPL?

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

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

Re:Open source people are greedy too. (2, Insightful)

CodeBuster (516420) | more than 5 years ago | (#25247369)

copyright and patents are limited exclusive rights granted by the government, but they are NOT the same thing as property in sense of real or physical property and thus cannot be "stolen" in the same sense that an owner can be deprived of physical property. The laws concerning property and those concerning copyrights, patents, and other grants of exclusive rights are entirely separate branches of our laws and are not covered under the criminal codes (although some copyright infringement is criminalized in some circumstances by different laws) which cover theft of property. If we want to advance the debate on copyrights and patents then we need to stop confusing the issues by adopting the terminology of the patent attorneys and the copyright cartels who always push the patents and copyrights == property concept (without basis) by using the term "intellectual property" [wikipedia.org] wherever and whenever they can as part of a conscious strategy to eventually have their definition accepted by the courts (i.e. keep pushing the lie until everyone believes that it is true and has always been that way).

Re:Open source people are greedy too. (1)

AshtangiMan (684031) | more than 5 years ago | (#25247719)

I'd like to hear you explain this assertion a little more:
The open source author's assertion of copyright is a form of greed as well.

It seems like the copyright holder claimed copyright to keep from being charged for his own work (i.e., to ensure that his own work was kept free as in beer and speach). How is this greed?

Re:Finally! (1, Insightful)

LWATCDR (28044) | more than 5 years ago | (#25246853)

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

Re:Finally! (5, Insightful)

Spy der Mann (805235) | more than 5 years ago | (#25247005)

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

And the victory sets a precedent against the big guys.

Re:Finally! (1, Interesting)

Anonymous Coward | more than 5 years ago | (#25247059)

It isn't about the train-controlling software guy being protected that's good, it's the fact that it's setting a precedent for other software authors to be protected against the same bullshit. I doubt anyone would try to pull this with the Linux kernel but it will discourage businesses from trying to take open-source and fold it back into a closed-source app.

Re:Finally! (1)

Dog-Cow (21281) | more than 5 years ago | (#25247487)

Huh? Have you forgotten SCO already?

Re:Finally! (1)

Bragador (1036480) | more than 5 years ago | (#25247075)

And why would that make it less "epic"?

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

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

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

Re:Finally! (1)

LWATCDR (28044) | more than 5 years ago | (#25247319)

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

Re:Finally! (1)

PunkOfLinux (870955) | more than 5 years ago | (#25247567)

Don't need to code to contribue. I, for example, work on user manuals.

Re:Finally! (2, Informative)

jo_ham (604554) | more than 5 years ago | (#25247343)

If you read a couple of details, you'll see that the bad guy here did the following:

a) incorporated source code written by the good guy into his product
b) patented it, and claimed it was his own work
c) sent a $200,000 bill to the original author for "infringing patents"

Whether they are both small fish or not is irrelevant, what this preliminary decision does is ensure that if you release your software under an open source licence that your hard work is protected and not free and easy pickings for the fastest sleazeball to the patent office, who is in front of you in line to file a patent on your work because he spends his time stealing code instead of writing it.

Thanks to this decision, you can't claim that free software licences are invalid and that code out there under those licences is public domain and free to take with no consequence.

Re:Finally! (1)

Timothy Brownawell (627747) | more than 5 years ago | (#25247837)

Thanks to this decision, you can't claim that free software licences are invalid and that code out there under those licences is public domain and free to take with no consequence.

You couldn't do that before, either.

Re:Finally! (5, Insightful)

MightyMartian (840721) | more than 5 years ago | (#25246865)

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

Kittens (-1, Redundant)

Anonymous Coward | more than 5 years ago | (#25246667)

I like kittens

Re:Kittens (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25246733)

I LIKE TURTLES!

Re:Kittens (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25246971)

ALL THE WAY DOWN!

I think I speak for everyone when I say... (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#25246699)

Go f*ck yourself Katzer!

Yay! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25246721)

Also, Fist?

Re:Yay! (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25246915)

I like a good fisting. Is tonight good for you?

profit lost (5, Funny)

Shinatosh (1143969) | more than 5 years ago | (#25246757)

1, wait for some guy to code something cool
2, In all .c and .h files do a "s/guys name/my name/g"
3, relase as closed source application
4, PROFIT!!

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

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

Cheers

Re:profit lost (0)

Anonymous Coward | more than 5 years ago | (#25247159)

If they knew what "s/guys name/my name/g" meant, they're also probably smart enough not to do that.

Should? (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25246785)

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

And how many should it be generating?

Face it- the US president manufactured a complete financial meltdown and two wars which will most likely last over ten years. There's also another presidential election, which may be the first federal election in over ten years which hasn't been rigged.

Then of course there is a boatload of other issues. All of which goes to show how much the average person cares about open source. Even ignoring all those other important stories going on, I still can't imagine a court ruling which only matters to open source advocates doing any better than it's one mention on Slashdot.

Re:Should? (2, Funny)

Millennium (2451) | more than 5 years ago | (#25246887)

And how many should it be generating?

Face it- the US president manufactured a complete financial meltdown and two wars which will most likely last over ten years. There's also another presidential election, which may be the first federal election in over ten years which hasn't been rigged.

You forgot to mention the part where Bush is a servant of the Anunnaki sent to keep the populace in control. How can you have a good conspiracy theory without EVIL ALIEN SERPENT PEOPLE [davidicke.com] ?

Uh - has something new happened... (0)

Anonymous Coward | more than 5 years ago | (#25246835)

in this case since the last time it was discussed?

http://news.slashdot.org/news/08/08/13/1857241.shtml

I agree it needs to get much more public attention than it has to date (some of the early decisions were enough to make anyone worried) but has something new happened?

Re:Uh - has something new happened... (1)

Hatta (162192) | more than 5 years ago | (#25247055)

I agree it needs to get much more public attention than it has to date (some of the early decisions were enough to make anyone worried) but has something new happened?

Bruce Perens wrote an article about it.

Don't break out the champagne yet (5, Informative)

Daniel Dvorkin (106857) | more than 5 years ago | (#25246839)

The higher court made a finding of fact and then sent the case back to the lower court. This is good, but it's not a clear-cut victory. What really needed to happen, IMNSGDHO, was for the higher court to find unambiguously in Jacobsen's favor and then issue a hardcore smackdown to both Katzer and the lower court judge.

From TFA:

Instead of trying to show that he did not copy Jacobsen's software, Katzer attempted to defend himself by asserting that the terms of Jacobsen's Open Source license were not valid and could not be enforced on Katzer, and that JMRI was essentially in the public domain. ... The judge agreed with Katzer.

Katzer is scum, and the judge in question is an incompetent fool. Katzer should be subject to criminal charges, and the judge should be censured if not actually removed from the bench. Anything less than that is not enough to get the point across.

Re:Don't break out the champagne yet (1)

TheDarkMaster (1292526) | more than 5 years ago | (#25247169)

How many money Katzer have? This will explain some questions.

Re:Don't break out the champagne yet (1)

orclevegam (940336) | more than 5 years ago | (#25247493)

What really needed to happen, IMNSGDHO, was for the higher court to find unambiguously in Jacobsen's favor and then issue a hardcore smackdown to both Katzer and the lower court judge.

Damnit, when I read that my mind auto-translated IMNSGDHO, and I'm pretty sure that's a sign of some kind of mental disorder. I wonder if there's a name for it yet.

Re:Don't break out the champagne yet (1)

mr_mischief (456295) | more than 5 years ago | (#25247777)

I think it's called AATD (acronym automatic translation disorder).

Re:Don't break out the champagne yet (1)

thephydes (727739) | more than 5 years ago | (#25247685)

IANAL, but it seems to me that this is the way the law should work. A Judge does not necessarily rule in a particular way because it is right. He/She can do so, so that the case can proceed to the next level for judgment by a court with greater authority/skill/knowledge. Whether the parties take it to the next level is a matter largely for their wallets to decide - in this case, thankfully there were people ready to argue the case for free at that higher court.

There never seemed a lot of doubt (1)

91degrees (207121) | more than 5 years ago | (#25246867)

Most of the suggestions that GPL wouldn't stand up in court were from Free Software proponents. I always felt they were being a little paranoid. The GPL offers something (the right to redistribute the software) for a cost (the obligation to also redistribute source and any changes).

I'm surprised it got as far as court.

Re:There never seemed a lot of doubt (1)

somersault (912633) | more than 5 years ago | (#25247183)

I'm surprised it got as far as court.

Perhaps the jerkoff who stole the source either didn't expect the guy to be able to prove anything, or just didn't think he'd put any money towards a court case since technically he hasn't lost any money in the first place.

I'm glad the author is standing up for what is right anyway, and hope the offeder's reputation is ruined enough that nobody will ever pay for his software again..

Re:There never seemed a lot of doubt (1)

somersault (912633) | more than 5 years ago | (#25247257)

Sorry, I forgot the part where the guy who patented the product tried to get money from the actual author. He probably would have gotten away with it otherwise. He's not just a criminal - he's a complete moron as well!

I don't see a decision... (2, Insightful)

ruin20 (1242396) | more than 5 years ago | (#25246871)

Maybe I'm just missing something but I don't see a decision. The preliminary ruling states that it's going to Dismiss in part, but not in whole the case.

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

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

Re:I don't see a decision... (4, Informative)

Zordak (123132) | more than 5 years ago | (#25247103)

This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.

Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy [copyright.gov] . In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source. [jw.com]

And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice.

Re:I don't see a decision... (1)

Migraineman (632203) | more than 5 years ago | (#25247461)

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

Re:I don't see a decision... (1)

faedle (114018) | more than 5 years ago | (#25247613)

Mod parent up.

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

I got in heated arguments with these people about eBooks being the wave of the future, their primary complaint being the perceived ease of "theft". The two friends who balked the loudest? Neither one has registered their copyright, even after I sent them links to copyright.gov and explained the limitations of enforcing copyright without registration (such as the ability a registration gives you to automatically treble any damages, etc.)

Register your copyrights, people.

Re:I don't see a decision... (3, Interesting)

gnasher719 (869701) | more than 5 years ago | (#25247389)

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

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

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

Go Bob! (1)

Migraineman (632203) | more than 5 years ago | (#25246883)

Man, Bob Jacobsen is fighting the good fight. If anyone has earned respect, he has.

Re:Go Bob! (1)

apodyopsis (1048476) | more than 5 years ago | (#25246999)

Even with lawyers donating their time and support from open source advocates this must of still cost him a lot in stress, time, money, reputation, hassle and general time lost.

For sticking to his guns and seeing this through he deserves a medal! or at least some public recognition over and above what he will get from /. and the net in general.

A good precedent is all it takes (3, Insightful)

Drakkenmensch (1255800) | more than 5 years ago | (#25246927)

Further cases involving open source code used in works later patented will refer back to this one. A landmark is always a good thing to have on your side.

This'll get modded down (2, Insightful)

The End Of Days (1243248) | more than 5 years ago | (#25246939)

I agree with the decision, I welcome it entirely.

However...

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

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

Re:This'll get modded down (1)

MightyMartian (840721) | more than 5 years ago | (#25247025)

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

Oh wait, they do...

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

Re:This'll get modded down (1)

RAMMS+EIN (578166) | more than 5 years ago | (#25247161)

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

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

``Thus the reason that Open Source, Free Software, whatever, while indeed meritorious for its ideals, will never gain widespread acceptance based on them.''

Perhaps not based on the ideals that some people have (I don't think any current software has ideals), but the fact that the source is available and one is allowed to modify and redistribute the software makes all the difference in some places. More and more people understand that open source means (1) you can run as many copies as you want without cumbersome and costly licensing procedures, (2) you can modify the software to your own needs and fix bugs that are plaguing you, without having to wait for anyone else, and (3) you can verify, or have others verify, that there is no nastiness in the software. Not everybody cares about these things, but the advantage open source has here is very real, and very much a deciding factor in some places.

Re:This'll get modded down (0)

Anonymous Coward | more than 5 years ago | (#25247249)

The number one reason most people want/use free/open source software is that the costs associated with obtaining and running the sofware are approaching zero monetary outlay.

Re:This'll get modded down (1)

bigstrat2003 (1058574) | more than 5 years ago | (#25247261)

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

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

Re:This'll get modded down (1)

digital bath (650895) | more than 5 years ago | (#25247469)

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

Re:This'll get modded down (1)

PeKbM0 (1372511) | more than 5 years ago | (#25247603)

If that's the case, RedHat would have gone broke. But it hasn't.

Re:This'll get modded down (1)

MozeeToby (1163751) | more than 5 years ago | (#25247341)

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

Freedom to use software matters to everyone (1)

Alwin Henseler (640539) | more than 5 years ago | (#25247397)

Yeah, people in general don't care. This is a trivial detail to the world at large. The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.

People don't care because it's trivial to circumvent copyright law. Imagine if that weren't the case: where everybody would have to pay for every single piece of commercial software they use. Where the are no cracks/serials, illegal downloads or warez copied from friends available. In that situation, people would care a great deal. Commercial software prices would drop faster than the US stock market, and freeware, open source etc. would become huge overnight.

Basically, people don't care because it's so easy to ignore the law. Which, IMHO, says a lot about what average folks think about the notion (and value) of copyrights. And perhaps, patents.

Re:This'll get modded down (1)

Timothy Brownawell (627747) | more than 5 years ago | (#25247423)

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

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

This is the first I have heard of this case (5, Interesting)

erroneus (253617) | more than 5 years ago | (#25247023)

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

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

Re:This is the first I have heard of this case (1)

lysdexia (897) | more than 5 years ago | (#25247785)

Unfortunately, it's pretty unclear what could actually be *done* to Mr. Katzer in this case.

From TFA:

Jacobsen's case against Katzer is ongoing, although this most important appeal is completed. He has not yet convinced the judge that Katzer lied on his patent application, but what if he does? There has been no criminal prosecution of anyone for lying ("perjury") on a patent application since 1974, when the patent office eliminated its enforcement department.

I imagine it would be hideously expensive (and probably very intrusive to the innocents ...) to thwart this sort of behavior "before the fact" as well.

The Federal Circuit and Copyright Law (5, Informative)

Grond (15515) | more than 5 years ago | (#25247107)

This case [uscourts.gov] may not be as strong a precedent as it appears at first glance. Bruce Perens's article, while informative, failed to mention a few important legal details, which I will try to fill in here. Please note that I am not a lawyer, and this is not legal advice.

The Court of Appeals for the Federal Circuit [uscourts.gov] , where this case was heard, has a more limited jurisdiction than the regional circuits (1st through 11th and DC). Generally speaking, the Federal Circuit hears cases arising under the patent laws, and it also has jurisdiction over a hodgepodge of federal administrative law issues (veterans claims, the Merit Service Protection Board, certain government contracts, etc). In this case, the appeal was heard by the Federal Circuit because of a tie-in to patent law, though that was not the subject of the appeal.

Why does it matter that the Federal Circuit heard the case? It's important because the Federal Circuit does not set precedents for copyright law. Instead, it relies on the precedents of the regional circuit that would have heard the case were it not for whatever side issue brought it under Federal Circuit jurisdiction. Here, the Federal Circuit used the copyright precedents of the Ninth Circuit because the case originated in the Northern District of California, which is in the Ninth Circuit.

So, this case is really only indicative of what two (of twelve) Federal Circuit judges and one district judge from New Jersey thought the Ninth Circuit would do if the appeal were heard there. It is not binding precedent on the Federal Circuit, nor the Ninth Circuit, nor any other regional circuit. Different circuits often have different interpretations of the law (called a circuit split), which can often only be resolved by a Supreme Court decision. It would not surprise me if other circuits take differing views on the validity or precise nature of open source licenses.

I would not even take this case as saying much about the Federal Circuit's own views. As pointed out earlier, one of the appellate judges in this case is a district court judge who does not normally take part in Federal Circuit cases. I would also point out that the Federal Circuit is known for having a very broad range of judicial philosophies represented on its bench, with judges often writing dissenting opinions in patent cases. There is no guarantee that even another case before the Federal Circuit would come out the same way, especially if it originated in a different circuit.

All is not doom and gloom, however. Courts are notoriously conservative and reluctant to make the first move in a new area of the law. Now that there is something to hook into, it is possible that district courts and other circuit courts will make use of the Federal Circuit opinion as persuasive authority in their own decision making. Just beware that there is no guarantee that will happen.

Can someone expand on this from TFA? (0)

Anonymous Coward | more than 5 years ago | (#25247167)

I've found three ways to combine any proprietary work with GPL and other Free Software, without a need to give away any source code, even when the Free part is under the new and most rigorous GPL3 license. And thus, as far as I can tell, there's never any good technical reason to break the Open Source license, because you can do anything you want without breaking the license. It just takes a working partnership with legal and engineering staff, and a few rules.

Does anyone know what those three ways are and, if so, could they summarize them? Thanks.

Re:Can someone expand on this from TFA? (1)

Timothy Brownawell (627747) | more than 5 years ago | (#25247289)

I've found three ways to combine any proprietary work with GPL and other Free Software, without a need to give away any source code, even when the Free part is under the new and most rigorous GPL3 license.

Any combination? GPL template library (C++) used by proprietary code? That'd certainly be interesting to see.

TAG this article, please (1)

TheDarkMaster (1292526) | more than 5 years ago | (#25247197)

Where is the "suethebastard" tag or "nowkillthen" tag for this? "gotcha!" is a good option too

A Link to an mp3 of the Oral Argument (5, Informative)

Grond (15515) | more than 5 years ago | (#25247251)

Here is a link to an mp3 of the oral argument in this case [uscourts.gov] , for the interested.

And here's the website for the law practice of the attorney who represented Jacobsen [vkhall-law.com] .

A link to the defendant's attorneys [fieldjerger.com] , who notably do not list intellectual property among their specialties. It is arguable that the defendant made a poor choice of attorney for this case.

And finally the Stanford lecturer who was the primary author on the amicus brief in support of Jacobsen [stanford.edu] .

How much did this case cost? (2, Informative)

twasserman (878174) | more than 5 years ago | (#25247327)

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

In a timely coincidence, the film Flash of Genius [imdb.com] is opening today. It tells the story of how Ford stole the invention of the intermittent windshield wiper from Dr. Robert Kearns, and how Kearns fought back (at considerable personal expense).

We also know that RCA and David Sarnoff stole the basic invention of television from Philo Farnsworth. It took more than 10 years for Farnsworth to win the right to royalties for his invention. Aaron Sorkin wrote a play, "The Farnsworth Invention" [playbill.com] , based on this story.

Why headlines? (1)

Timothy Brownawell (627747) | more than 5 years ago | (#25247331)

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

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

Please digg this as well (0)

Anonymous Coward | more than 5 years ago | (#25247555)

For those who are on Digg, please digg this story here [digg.com] to get the word out some more.

Was it really so earth shattering? (4, Informative)

NewYorkCountryLawyer (912032) | more than 5 years ago | (#25247647)

I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.

Hyperbole (1)

DragonWriter (970822) | more than 5 years ago | (#25247713)

An appeals court has erased most of the doubt around Open Source licensing, permanently

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

legal precedent doesn't always help (1)

drfireman (101623) | more than 5 years ago | (#25247829)

From the article:

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

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

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