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The Long-Term Impact of Jacobsen v. Katzer

timothy posted more than 5 years ago | from the stabs-in-the-dark dept.

The Courts 77

snydeq writes "Lawyer Jonathan Moskin has called into question the long-term impact last year's Java Model Railroad Interface court ruling will have on open source adoption among corporate entities. For many, the case in question, Jacobsen v. Katzer, has represented a boon for open source, laying down a legal foundation for the protection of open source developers. But as Moskin sees it, the ruling 'enables a set of potentially onerous monetary remedies for failures to comply with even modest license terms, and it subjects a potentially larger community of intellectual property users to liability.' In other words, in Moskin's eyes, Jacobsen v. Katzer could make firms wary of using open source software because they fear that someone in the food chain has violated a copyright, thus exposing them to lawsuit. It should be noted that Moskin's firm has represented Microsoft in anti-trust litigation before the European Union."

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first post (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27604241)

I win first post, nerds.

Re:first post (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27604905)

And to think if only Richard Stallman had been able to get laid while working at MIT he might actually have a wife and family to spend his time with instead of jacking off his 2 inch dick to the Emacs source code every night.

Re:first post (1)

s73v3r (963317) | more than 5 years ago | (#27606659)

Ahh, good old M-x C-x jackoff

All Electronic Communication is INTERCEPTED +1 (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#27604299)

I'll repeat again: All electronic communications is intercepted by your so-called democratic government.

Read about it here [huffingtonpost.com]

Yours In Communism,
Kilgore Trout

And you are surprised? (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27604333)

Didn't you know that Americans like getting bent over and fucked in the ass with no lube?

Yes, we enjoy it thoroughly.

Long-term impact (0)

the_humeister (922869) | more than 5 years ago | (#27604325)

As I can recall is that Katzer is an ass and will hopefully be remembered as such.

Oh, you mean with regard to open-source licensing. Well, they're proven enforceable. Hooray!

Re:Long-term impact (-1, Flamebait)

Anonymous Coward | more than 5 years ago | (#27604355)

No corporation wants to use open sores software because they know somewhere along the line the ideas and code were almost certainly stolen from someone else. Lunis Noballs, Richard StillaVirgin and AIDS Perens can go suck a dong.

Re:Long-term impact (1, Informative)

Anonymous Coward | more than 5 years ago | (#27604439)

No corporation wants to use open sores software because they know somewhere along the line the ideas and code were almost certainly stolen from someone else. Lunis Noballs, Richard StillaVirgin and AIDS Perens can go suck a dong.

Translation: I like it rough and I'm trolling for dates.

Re:Long-term impact (1)

the_womble (580291) | more than 5 years ago | (#27608215)

Given that the conditions in open source licences apply to redistribution, this only affects software vendors who want to rip-off GPL (or similar) code for proprietary products.

That is the point of these licences.

Moskin is also very biased - it is very obvious in the law.com article that tries to spin the facts to imply that end users would be at risk, when the facts presented (read the last para) contradict this.

Not a minor violation (5, Insightful)

Anonymous Coward | more than 5 years ago | (#27604347)

Katzer did considerably more than fail to comply with modest license terms. He filed a patent application for something he did not invent and claimed copyright to something he did not write. This was not a case of a minor license violation, but rather deliberate fraud. Consequently, the penalties he faced were much higher,

Re:Not a minor violation (1)

Tanktalus (794810) | more than 5 years ago | (#27605319)

You know that. I know that. The question is: will the CEOs and CIOs of big business care long enough to grasp the subtleties, or will they go with something they understand: shelling out cash to Microsoft (or maybe Apple) for the indemnification against patents and copyrights that they provide? Will they sic a lawyer on it long enough to get legal advice that may or may not turn out in their favour (the C*O's don't know), or just go with the "safe" choice?

Re:Not a minor violation (1)

martin-boundary (547041) | more than 5 years ago | (#27606409)

Who cares what the CEOs do? Economics works like this: if they don't use open source while their competitors do, then their competitors will eat their lunch, all other things being equal.

In reality, all other things are not equal, but the inroads and rapid evolution of open source in the last ten years suggests that the picture is substantially right for the next ten years.

Re:Not a minor violation (1)

Korin43 (881732) | more than 5 years ago | (#27607333)

No no no.. If they don't use open source while their competitors do, they will fail, but since they're too big to fail, they will receive bailouts. The companies that used open source and made a profit will fail because they can't compete against government sponsored monopolies.

Re:Not a minor violation (1)

DoctorPepper (92269) | more than 5 years ago | (#27606837)

I think you might be surprised (pleasantly, at that). I work for a fairly large U.S. corporation, and we have a butt-load of commercial hardware and software (Sun hardware + Solaris, IBM AIX, WebSphere, etc...), but are now making a very concerted push towards open source (Linux on X86/X86-64, JBoss, etc...). Even "old CIO" dogs can learn a new trick... when the IT budget starts shrinking.

If only I could convince them to move from Windows on the desktop, to Linux. Oh well, take the victories when and where you can.

Re:Not a minor violation (1)

VernonNemitz (581327) | more than 5 years ago | (#27611003)

From the lead article: "a set of potentially onerous monetary remedies for failures to comply with even modest license terms"

Just how difficult is it to comply with modest open source license terms? The more a law firm can manage to get you to think that task is tougher than it really is, the more $$ it can charge you.

Whis is this story even here? (0)

Anonymous Coward | more than 5 years ago | (#27604353)

If they guy's firm represented Microsoft why is this story even here? Not because it's Microsoft, but because of the inherent conflict of interest.

Maybe, maybe not (5, Informative)

rewt66 (738525) | more than 5 years ago | (#27604361)

IANAL. Having gotten that standard disclaimer out of the way, here's how I understand it. Jacobsen v. Katzer was a blatant, deliberate ripoff of open source code, followed (IIRC) by suing the original author for using his own code that the thief had claimed after stealing it. Said thief claimed that the open source license didn't mean anything, so that the thief's claim on the code was the only real one. Said thief lost the case. Now, I may have some of the foregoing details wrong. Don't take that as the gospel about what happened. But the point is, this case doesn't have much to do with accidental infringement. So let's take a specific example. Let's say open source project X unwittingly gets some code in it that is actually owned by company Y. Let's say that you, company Z, are using this code in a widget that you have shipped a large number (N) of. Now company Y is raising a stink. Do you have to either pay company Y for the use of their code or update all of your widgets in the field? Yes, unless company Y decides to be nice. (Note, however, that this is no different than a situation that Microsoft found itself in a few years back, so it's no different because the code was open source.) Are you liable for some large number of dollars times N to penalize you for stealing company Y's code? Probably not, unless your lawyers do a lousy job. You did it in innocence, which is completely different than the facts of this case.

Re:Maybe, maybe not (1)

hurfy (735314) | more than 5 years ago | (#27604481)

I hope this is a good summary because clicking the link to the case could cure one of clicking the links real quick. (the umm summary has like 150 links in it)

In either case, this sounds like a pretty extreme case. Anyone stupid enough to charge the person they stole it from has it coming in any event and probably didn't use the smartest solutions elsewhere.

Re:Maybe, maybe not (-1, Redundant)

MarkvW (1037596) | more than 5 years ago | (#27604589)

Parent article is full of GROSS misstatements of fact--too many for me to bother to correct.

Re:Maybe, maybe not (1)

saforrest (184929) | more than 5 years ago | (#27604761)

Parent article is full of GROSS misstatements of fact--too many for me to bother to correct.

Um, could you at least correct a few then? I mean, the parent began with a pretty compact little summary. In what way is this not true?

Re:Maybe, maybe not (1)

Willbur (196916) | more than 5 years ago | (#27605023)

Just to clarify, MarkvW said the "Parent article" is a full of gross misstatements. I assume MarkvW is referring to Bill Snyder's "Parent article" (the first link in the summary and referencing Lawyer Jonathan Moskin's coments), not rewt66's "Parent post" of his knowledge of the case (which matches my memory of the case).

I don't think Snyder's article is full of "GROSS misstatements". I think it is full of the sort of ordinary misstatements you get when a well meaning journalist is reporting on something they don't really get. It is full of false balance, and it leaves out some important details stating things like "The facts in the case are somewhat muddled". I suspect Snyder's understanding is more muddled than the facts, but I think he did an OK (but not good) job.

Re:Maybe, maybe not (5, Informative)

Todd Knarr (15451) | more than 5 years ago | (#27604987)

Is it? Here's a link to the GrokLaw article on the case. [groklaw.net] A quick check vs. the court filings indicates the article is correct. What I find: Jacobsen developed the software and methods included in it. Katzer took those, filed for patents on them, and tried to bill Jacobsen for using those patents. Jacobsen sued for declaratory judgement that his software wasn't infringing and the patents were invalid, based in part on the fact that Katzer failed to mention Jacobsen's software in his patent application or that the methods Katzer was claiming a patent on had been published more than a year prior to the filing.

And if you want more details, here's the Groklaw article on the Appeals Court's overturning of the district court's decision [groklaw.net] . It includes the complete text of the Appeals Court's ruling, so you can compare the analysis to what the court actually said and see for yourself that the analysis is on target.

Re:Maybe, maybe not (1)

rewt66 (738525) | more than 5 years ago | (#27605007)

Thanks. I was running from memory, so it was plausible that I had it badly wrong. Nice to have my memory confirmed.

sanction? (1)

bugi (8479) | more than 5 years ago | (#27605235)

Isn't there a standard penalty for a lawyer who blatantly lies about the facts of a case?

Re:sanction? (1)

Tanktalus (794810) | more than 5 years ago | (#27605339)

I think they're called "corporate attourneys." Or cops, but those aren't usually lawyers.

Re:sanction? (1)

KwKSilver (857599) | more than 5 years ago | (#27605813)

Sanctions? Yes, thanks for asking. They are eventually elected to public office and become successful politicians of either US major party ... and filthy rich.

Sanction? Not in a million years. (0)

Anonymous Coward | more than 5 years ago | (#27606913)

In reality noting much ever happens to them. The Lawyers guild protects them and Law Courts give them every chance they can to get off the hook. They know they risk noting for telling lie after lie after lie with no regard to who or what they ruin in the process.

a junkie Whore is more honest than 99.9% of those in the legal profession. Sorry Ray. It is the truth.

Re:sanction? (1)

FatdogHaiku (978357) | more than 5 years ago | (#27607111)

Isn't there a standard penalty for a lawyer who blatantly lies about the facts of a case?

Yes, many of them end up serving long terms (even life sometimes) as an elected representative of the "people" in various state or national legislative bodies...

Is it a new risk? (4, Insightful)

Todd Knarr (15451) | more than 5 years ago | (#27604379)

Is this really a new risk? If you're distributing software that includes a proprietary closed-source component, and someone upstream in the company that created that component illegally included copyrighted proprietary software in it, wouldn't that expose you to exactly the same risks for exactly the same reasons, and permit you exactly the same defenses? I don't see where open-source makes any difference here, in all cases (open-source and closed-source) where you redistribute someone else's software you have to trust that they haven't committed copyright infringement in what they're providing to you.

Open-source is, if anything, less vulnerable to these risks. So far all the cases I've seen reported have involved the inclusion of non-licensed software (both proprietary and open-source) in closed-source proprietary products. The only allegations going the other way, of inclusion of unlicensed code in an open-source project, were SCO's allegations of the inclusion of SysV code in Linux and IBM shredded those so thoroughly you need a microscope to find the pieces (and in the process made a good argument that it's in fact SCO that's been including Linux code in their products in violation of the license).

Re:Is it a new risk? (1)

newcastlejon (1483695) | more than 5 years ago | (#27604915)

If you buy software from a company X and it's closed source, how can you reasonably be expected to know there's something belonging to company Y in there? If I release a binary with someone else's code in it someone might notice if they bother to disassemble it (IANAP btw). This presupposes that the have a reason to go looking. On the other hand if I make the source available to anyone then it's a lot more likely that someone will notice.

Re:Is it a new risk? (0)

Anonymous Coward | more than 5 years ago | (#27610555)

Not a new risk, and the article is FUD. In addition to misstating the particulars of the Katzer case, they leave out an important fact. Microsoft customers have already been sued for Microsoft's patent violations. This isn't a theoretical risk, and it has diddly-squat to do with open source.

Re:Is it a new risk? (1)

cenc (1310167) | more than 5 years ago | (#27611269)

Very good point. Essentially, I believe there is a practical and legal aspect. One, there is no intent to steel the code, in the same way I go and rent a car, get pulled over, and find out the car is stolen. Chances are no one is going to hold me responsible.

From a practical stand point, I could also see that if the code did come from and open source source, some company claiming it was stolen would very possibly not bother going after the person or organization because they view it as no money in it. That becomes especially true if for example there are 100 of thousands of people that obscure the true source. Essentially, it is more judgment proof. Still possible, just would tend to discourage most attorneys from telling their client it would be a good idea to go after open source project x.

How often do open source projects get sued compared to private corporations? It is not an accident or because open source community checks every line of code with their lawyers. It is simply to expensive with no clear pockets to go after, even if you win.

Longer term (-1, Troll)

Anonymous Coward | more than 5 years ago | (#27604401)

This is less interesting than starring at goatse [goatse.fr] all night.

Did I fall asleep?

The Stallman Tribe Should Be Respected. (1)

MarkvW (1037596) | more than 5 years ago | (#27604421)

This story is just another invitation for us all to engage in the FREEBSD vs. GPL debate all over again. In other words, more copyright strings retained or less copyright strings retained? Which is better?

The railroad guy could have licensed his program freebsd, but he didn't want to because he wanted the GPL yield. He's happy and I'm happy for him (and for Stallman).

The idea that the Courts should judicially convert GPL'd software into FREEBSD'd software is really evil. Corporations would freak out of their political underwear if anybody tried to do that to their closely-held IP. The Stallman tribe deserves the same respect. THAT is what equal protection is all about.

Let the Stallman tribe do their thing. I like the freebsd approach the best, but the Stallman tribe's approach must be respected (after all, I really like Linux).

Which is better? (1)

transporter_ii (986545) | more than 5 years ago | (#27604649)

For hardware, like a Tivo or a model railroad interface, if you don't want people to see the code, it seems that using code from BSD-style licensed code would be the best thing to use.

If you don't care if people see the code, then use code from a GPL project and release your code as per the license.

Anyone smart enough to build a model railroad interface should be smart enough to know the difference between the two licenses.

Re:The Stallman Tribe Should Be Respected. (1)

chromatic (9471) | more than 5 years ago | (#27605159)

The railroad guy could have licensed his program freebsd, but he didn't want to because he wanted the GPL yield.

If you had read any of the material about the case, you might have noticed that Jacobsen in fact used the Artistic License.

Re:The Stallman Tribe Should Be Respected. (1)

mabhatter654 (561290) | more than 5 years ago | (#27607193)

bingo! GPL only works as long as the rules are the same for EVERYBODY. Courts have no less right to take copyright away from somebody who uses GPL than they do to take copyright away from Microsoft when they're a monopoly... and we haven't seen that happen, have we.

Re:The Stallman Tribe Should Be Respected. (1)

the_womble (580291) | more than 5 years ago | (#27608233)

Actually it was not GPL licensed. Part of the problem is that he used the artistic license. RTFA.

So? (1)

tnk1 (899206) | more than 5 years ago | (#27604445)

I mean, so what?

Commercial companies use IP of other commercial companies all of the time. That doesn't mean that the customers can't fall prey to someone else's copyright/patent claims, either directly, or as a result of a higher price that is passed on to the customer as the result of legal defense.

I understand that there may be a feeling that there's no no legal department for an Open Source project, so it may have more issues with IP, but honestly, that's a misconception. Any project that has gained any traction whatsoever is probably right up there with proprietary vendors in checking these things out.

If anything, Open Source doesn't generally have these labyrinthine, not to mention secret, deals that the proprietary publishers sometimes have which end up in constant litigation and uncertainty.

So why doesn't this affect closed source software? (4, Informative)

Vellmont (569020) | more than 5 years ago | (#27604449)

If you know even a tiny amount about the case, it actually was about commercial closed source software that violated the GPL. So if this is going to affect businesses opinions of software and risk, why is commercial software somehow immune from FUD?

It seems to me that open source software has LESS of a change of a license violation, for the very fact that anyone can look for anyone license violations. Closed source software is the one with the potential for all those scary skeletons in the closet. If you're to believe the Microsoft lawyer, I guess those closed source software operations should start shitting bricks.

Re:So why doesn't this affect closed source softwa (1)

CodeBuster (516420) | more than 5 years ago | (#27605143)

It seems to me that open source software has LESS of a change of a license violation

Not necessarily, a particular company might discover that some of their copyrighted code has made it into an open source project, but then wait until some large company with deep pockets starts using it in their product. The copyright holder could then conveniently "discover" the infringing code and proceed to sue the large company for infringement (this is a similar scenario to the "submarine patent" which surfaces and attacks when there are good targets available).

Re:So why doesn't this affect closed source softwa (1)

chromatic (9471) | more than 5 years ago | (#27605177)

If you know even a tiny amount about the case, it actually was about commercial closed source software that violated the GPL.

No, it wasn't. It has only a tangential connection to the GPL.

Hmmm.. (2, Informative)

drewsup (990717) | more than 5 years ago | (#27604451)

From the summary... It should be noted that Moskin's firm has represented Microsoft in anti-trust litigation before the European Union." and just how is that working out for them... LOL

Re:Hmmm.. (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27604523)

Fine. They're Lawyers. They're getting paid by the hour, not by the success.

FUD FUD FUD FUDier and FUDest (1)

redelm (54142) | more than 5 years ago | (#27604465)

Hey, the guy is talking his wallet.

Sure, you can find a legal downside to just about anything. And he has worked hard at it for his employeers who must feel threatened.

Yes, there is a slim chance that something untoward has happened in the open-source development chain. Most likely proprietary code being inadvertantly included. However, the likely rememdy for innocent use of such code is likely to be zero.

It was the blantant ripoff nature that attracted the penalties. Of course, this confusion is grist for the FUDmill.

Open source code is no different than proprietary (4, Insightful)

caseih (160668) | more than 5 years ago | (#27604473)

The reality is that free and open source code is no different in *any* way from code from any other source. If it's not yours you cannot legally use it, _unless_ you abide by the licensing terms of the licensor.

It astounds me how many companies get trapped thinking that copyright is somehow different for free and open source software. Boggles the mind. It also boggles my mind that companies buy into the idea that things like the GPL can "infect" the company's IP. In a corporate world stuffed full of lawyers--IP lawyers even--how such basic misunderstandings of copyright law can be so widespread in industry is really disheartening.

Re:Open source code is no different than proprieta (1)

CodeBuster (516420) | more than 5 years ago | (#27605181)

It astounds me how many companies get trapped thinking that copyright is somehow different for free and open source software.

The association appears to have been started or gained currency after Steve Ballmer referred to Linux in an 2001 interview [theregister.co.uk] as a "cancer that attaches itself in an intellectual property sense to everything it touches."

Re:Open source code is no different than proprieta (2, Insightful)

Mr. Beatdown (1221940) | more than 5 years ago | (#27605203)

GPL can "infect" a company's IP. And that's not a bug, it's a feature. RMS has said so [gnu.org] himself and others [gnu-pascal.de] are also quite clear on this.

Re:Open source code is no different than proprieta (0)

Anonymous Coward | more than 5 years ago | (#27605343)

The first link you posted says that someone can't force you to sign an NDA to receive GPL-licensed code. What exactly does preventing people from violating the GPL license on distribution have to do with infecting a company's IP?

Re:Open source code is no different than proprieta (3, Informative)

ion.simon.c (1183967) | more than 5 years ago | (#27606675)

You said:

GPL can "infect" a company's IP. And that's not a bug, it's a feature. RMS has said so [gnu.org] himself and others [gnu-pascal.de] are also quite clear on this.

The GPL is no more infectious than the "you can't sell the software that you build with this tool" clause of the license that accompanied "student" versions of MSFT's Visual C++ 6 and 7.

From the first link:

GPL and NDA

        * To: gcc at gcc dot gnu dot org
        * Subject: GPL and NDA
        * From: Richard Stallman
        * Date: Thu, 19 Jul 2001 05:07:10 -0600 (MDT)
        * Reply-to: rms at gnu dot org

GPL-covered code may not be distributed under an NDA.
To do so is a violation of the GPL.

If someone asks you to sign an NDA for receiving GPL-covered code that
is copyright FSF, please inform the FSF immediately. If it involves
GPL-covered code that has some other copyright holder, please inform
that copyright holder, just as you would for any other kind of
violation of the GPL.

It is possible for a person or company to develop changes to a
GPL-covered program and sign an NDA promising not to release these
changes *to anyone*. This is a different case. As long as these
changes are not distributed at all, a fortiori they are not
distributed in a way that violates the GPL.

However, if and when the changes are distributed to another person or
outside the company, they must be distributed under the terms of the
GPL, not under an NDA.

This doesn't have anything to do with the licensing of works that derive from GPL-licensed code. Your inclusion of this information makes you look either illiterate or careless.

From the second link:

From: Phil Nelson
Subject: Inaccurate information in `GNU' section
Date: 23 Apr 2004, 09:33:30

Hash: SHA1

On Thursday 22 April 2004 11:45 pm, Peter N Lewis wrote:
> > > I'm confused by this. If it "does not contain code from any
> >
> >> GPL-covered software", then surely you can release it under any
> >> license you feel like, whether it can run stand-alone or not. If I
> >
> >A program can be free of code from a GPL-covered program, but it links
> >with a library licensed under the GPL, then it has to be under the GPL
> >as well. It is this catch, if you will, that led to the LGPL.
>
> This could only be true if you ship the binary with it linked.

First, the disclaimer, IANAL.

Second, I wrote gdbm for the FSF and have had many many conversations with Mr.
Stallman about the GPL and how it applies to libraries. The key to the GPL
is the understanding of "derivative work". I'll use gdbm as an example.

If code directly calls any of the gdbm functions, it *is* a derivative work.
Therefore, any work that directly calls gdbm functions and is distributed
must be distributed under the terms of the GPL. Of course, the GPL is
transitive, thus any program that has a call path that ends up in a gdbm
function is required to be under the GPL. (If distributed.)

If your code is written for the original dbm interface it is not a derivative
work of gdbm, even if you happen to use the dbm interface to gdbm.
It would be considered a derivative work of dbm.

I don't know if this would stand up in a court of law, but I'm very sure this
is what Mr. Stallman intended for the GPL. I have requested that gdbm be
put under the LGPL so that programs that use gdbm don't have to be under the
GPL, but he has chosen to keep the GPL on gdbm. Therefore, whenever people
ask about gdbm, the GPL and their programs, I must tell them that if they
plan to distribute a work that uses gdbm functions, it must be distributed
under the GPL.

- --Phil

This supports your argument that systems which directly include code licensed under the terms of the GPL must themselves be licensed under the GPL.
However, proprietary systems can be designed that work *with* GPL'd software in such a way as to not require licensing under the terms of the GPL. For example, one could write a GPL'd driver for gdbm that reads from stdin and writes to stdout and a proprietary consumer of the driver's output. See [0] for more info.
Moreover, any producer of GPL'd software can add any licensing exceptions to his code that he cares to add. Hell, the FSF even did such a thing with their libstdc++. See [1] for more info.

[0] http://www.gnu.org/licenses/old-licenses/gpl-2.0-faq.html#GPLInProprietarySystem [gnu.org]
[1] http://www.ib.cnea.gov.ar/~oop/biblio/libstdc++/exception-source.html [cnea.gov.ar]

Re:Open source code is no different than proprieta (1, Insightful)

caseih (160668) | more than 5 years ago | (#27607039)

Nope. Wrong. Sigh. Same old FUD and misconception. Let's repeat. No GPL'd code cannot "infect" your own IP. If you are using GPL'd code without abiding by the license, you find yourself in a situation where you have these alternatives:

1. Keep the GPL'd code in your project and re-license your code to be in compliance with the GPL.
2. Remove the code in question, since you don't have any legal right to use it.
3. Negotiate licensing and royalty terms with the copyright holder to use their code in a way compatible with your own IP needs.

It's that simple, folks. Please don't spread this FUD anymore. It's untrue at best, very dishonest at worst.

Re:Open source code is no different than proprieta (1, Insightful)

Anonymous Coward | more than 5 years ago | (#27608125)

Let's repeat.

Yeah if you do that enough times, maybe it will become true!

You just explained in your #1 bullet point exactly how it is capable of infecting your code. You include it in your project and the whole thing becomes GPL if you distribute the binary even once. Even if you take it out and close it later, you've been forced to expose your source code to the whole world.

This is what any reasonable person would call "viral". GPL zealots don't like that label of course, and refer to it as "FUD", but in every single rebuttal they actually end up proving it true, all the while insisting that it somehow isn't. Hilarious.

Re:Open source code is no different than proprieta (2, Insightful)

Olivier Galibert (774) | more than 5 years ago | (#27608993)

Let's repeat.

Yeah if you do that enough times, maybe it will become true!

You just explained in your #1 bullet point exactly how it is capable of infecting your code. You include it in your project and the whole thing becomes GPL if you distribute the binary even once. Even if you take it out and close it later, you've been forced to expose your source code to the whole world.

No it doesn't become GPL. Changing the license on your code is not one of the remedies a court can decide. The court can only decide on injunction against distributing the code, money and in extreme cases jail.

The only way the license can change on your code is if you decide it, possibly through a settlement.

    OG.

Re:Open source code is no different than proprieta (1)

Rysc (136391) | more than 5 years ago | (#27609631)

If I were to go out and find a copy of the Windows source code that was leaked a while back and put some of it in to my program then I have 'infected' my IP in precisely the same way.

I don't have the OPTION of relicensing my code, because MS does not find that an acceptable solution, but my other options are the same.

Relicensing your code is one possible remedy to a copyright violation when the GPL is involved. Would you prefer it if the GPL denied you this option and always demanded royalties? You might say "But then no one would use the code in the first place!" and while you'd be wrong you prove the point: You are not obliged to poison your own code with someone else's copyrighted code. If you choose to do so you *must* have some agreement with the copyright holder. The copyright holders who use the GPL are so nice about it that they do not even require you to talk to them, they simply say that they are willing to license their code for your use if you license the resulting work in a particular way. You are free to decline! If you find someone else's code in your work that has entered in to it accidentally then you are free to remove said code and (possibly) pay a penalty, whether the code was under the GPL or had no license at all.

The GPL simply gives you, the developer, ADDITIONAL options above what copyright law normally allows. You are free to not exercise those options.

Re:Open source code is no different than proprieta (1)

wastedlife (1319259) | more than 5 years ago | (#27616531)

Mod parent up. Every argument against the GPL that I have seen boils down to the above.

To summarize, if you do not want to abide by the license the copyright owner gives to their software, then you can: attempt to buy it from them under a different license, use different code under a license you agree with, or write it yourself. It is the same with closed source. By releasing their code under the GPL, they are giving you those options plus the option to use and modify the code for free as long as you comply with the license(which only applies to distribution). With BSD type licensed software, you are pretty much free to do whatever with it.

Re:Open source code is no different than proprieta (1)

mabhatter654 (561290) | more than 5 years ago | (#27607257)

That's silly, it can't "infect" your IP. It can however wreck your plans for distribution. You're ALWAYS free not to mix the code with yours and your free to unmix the code and not distribute binaries. Once the binaries are in the wild it gets sticky, but courts and arbitration has generally been OK with companies withdrawing offending distributions then releasing fixed ones with the GPL parts properly segregated. I don't think any OSS projects have gotten closed binaries actually opened up, and I don't think courts would force that.

Re:Open source code is no different than proprieta (1)

Carewolf (581105) | more than 5 years ago | (#27609013)

GPL can not more infect your IP than any other non-licensed code. To find real comparable examples, look at the Video for Windows vs QuickPlay case. Microsoft copied code from Apple they had no valid license for. This did not mean Apple owned their code, or that every Microsoft user with illegal Apple code had to pay Apple. No Microsoft removed to infringing code and payed a reasonable fine.

Re:Open source code is no different than proprieta (1)

mark0978 (1052438) | more than 5 years ago | (#27612909)

Part of the reason that IP Laws are so screwed up is that Lawyers are involved. They are hired shills looking to find some way to benefit their client regardless of what bullshit logic they have to use to make it appear OK.

Witness the Bush admin and all of its "Legal opinions" that completely violate the constitution.

"Food chain"? (1)

John Hasler (414242) | more than 5 years ago | (#27604489)

In the Free Software world we don't eat each other.

Re:"Food chain"? (1)

Tweenk (1274968) | more than 5 years ago | (#27604939)

Instead, we dump our shit in rivers.

"New upstream release" anyone?

Re:"Food chain"? (0)

Anonymous Coward | more than 5 years ago | (#27605137)

Who would actually want to eat Richard Stallman?

Theives make up reasons why they should steal. (2, Insightful)

Stumbles (602007) | more than 5 years ago | (#27604547)

Yeah the only reason Moskin has concerns is due to the propensity for the proprietary world to steal code, ie violate the licensing terms and NOT want to suffer the consequences. To bad. You think Microsoft would extract their pound of flesh for violating their licensing terms? Oh wait, why don't you go ask those who have had a visit by the BSA.

Damned if we do ? (1)

peculium.infirmus (1261356) | more than 5 years ago | (#27604601)

So basically we are damned if we use Microsoft's products because of various other reasons, and damned if we use FOSS ? Wheres the middle here ?

Re:Damned if we do ? (0)

Anonymous Coward | more than 5 years ago | (#27605005)

Your torso.

Two points (3, Informative)

MSG (12810) | more than 5 years ago | (#27604759)

It's important to bear two things in mind:

1: The financial impact in this case was a result of Katzer's refusal to comply with the license. It was not an automatic result of his use of the code in question, but his failure to take corrective action when notified of his infringement.

2: Proprietary code may include proprietary components in violation of their license just as easily as it can contain Free Software components in violation of their license. The risk involved in using code licensed from a third party carries exactly the same risks whether or not it is Free Software.

Monetary Remedies? (0)

Anonymous Coward | more than 5 years ago | (#27604871)

Monetary remedies not tied to actual damages for small infringements???

Sounds familiar.

If RIAA can do it, then open source software writers can.

Re:Monetary Remedies? (1)

shentino (1139071) | more than 5 years ago | (#27606821)

I don't mind punitive actions to deter guys exploiting infringement fees as just a cost of doing business.

Make it like a traffic ticket.

Article suggestion (0)

Anonymous Coward | more than 5 years ago | (#27604893)

Perhaps Moskin could also talk about the potential for liabilities that arises when using software products from his client "Microsoft". Timeline, Eolas, Armando, Uniloc... As I'm sure he's aware, Microsoft only indemnify their customers to the value of licensed software.

The article could form a conclusion that Microsoft are effictively providing the same level of indemnity you get with free "as in beer" software.

Total FUD (3, Insightful)

fermion (181285) | more than 5 years ago | (#27604955)

and I don't use trendy acronyms lightly.

There is always a risk with using software for any purpose, be in as an end user, developer, or whatever. It is up to the user and the administrators to insure compliance. The only time an issue will every come up, be it in open, closed, or revolving software will be when the assumption is made that the software, code, ideas can be used for free, with no real or opportunity costs. Honestly, this assumption is made quite often, and every once in a while someone is caught. Fines are put into place to deter others from doing the same.

So nothing really changes. If one is a legitimate business, one still needs to insure that all supplies are kosher. Assuming that somehow the laws of physics have changed just because are going on the internet and getting stuff for free has gotten many a bussiness in trouble long before this ruling.

Re:Total FUD (1)

Xtifr (1323) | more than 5 years ago | (#27605577)

and I don't use trendy acronyms lightly.

Trendy? I'm pretty sure that it dates back to the days of IBM vs. Amdahl et. al, i.e. before Microsoft was even a gleam in BG's eye. In fact, according to Wikipedia [wikipedia.org] , it was coined circa 1975 by Gene Amdahl (shortly after he left IBM for the second and final time) to refer to IBM at the height of their power and influence. I think that 30+ years of currency takes it a little beyond the "trendy" category--at least in this industry.

But you're right, it seems to fit all-too-well here, even if you consider it overused.

ZOMG!!! The law applies... (3, Interesting)

burnin1965 (535071) | more than 5 years ago | (#27605221)

...even when using source code licensed under open source terms!!!

And all these corporations using open source software to run their business are at risk of violating the terms of those licenses and will now drop open source like a sub-prime mortgage derivative laundered ten times over.

Oh, wait, it was a proprietary product that violated the open source license....ZOMG is right, proprietary vendors are screwed, how can you know if your closed source vendor has stolen open source code until after you've invested in using their product and put your business at risk.

Gee, I guess its just one more reason to use open source software from open source vendors. Who knows what kind of trouble those closed source vendors are getting you into.

Re:ZOMG!!! The law applies... (1)

KwKSilver (857599) | more than 5 years ago | (#27605863)

Tables nicely turned. Mod parent up.

Know your license (1)

radneb (30095) | more than 5 years ago | (#27605859)

It means its even more important to use a well known open source license so there are no hidden gotchas.

bullshit (1)

speedtux (1307149) | more than 5 years ago | (#27606727)

If you try to defraud open source developers, you'll get nailed to the wall by courts. If you make an honest mistake, the courts take that into account and are lenient.

You're at far greater risk of enforcement action from Microsoft and their goons; unlike open source, where you're only at risk if you deliberately try to violate the license, organizations like the BSA regularly impose high costs on businesses.

The story missed an important item (1)

Kupfernigk (1190345) | more than 5 years ago | (#27609281)

"Moskin's firm has represented Microsoft in an anti-trust case before the European Court " - which they lost/
Not to dump on Moskin's firm, because Microsoft did themselves no favours at all, but there should only be two sorts of lawyer who try to influence the law outside the courtroom: those elected politicians, and those who have retired.

Texas IP Law Journal on This Issue (3, Informative)

TheoMurpse (729043) | more than 5 years ago | (#27610983)

For those who care, TIPLJ has a scholarly article in their latest issue about Jacobsen v. Katzer. Robert W. Gomulkiewicz, Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License, 17 Tex. Intell. Prop. L. J. (Forthcoming 2009). [utexas.edu] The abstract:

The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the caseâ(TM)s greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important question about the interplay between contract and intellectual property law: Can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? This article explores the lessons taught by Jacobsen v. Katzer and the open issue that it leaves, concluding with a proposal that supports the business model innovation characterized by open source licensing.

FUD (1)

NukeDoggie (943265) | more than 5 years ago | (#27611911)

Consider the Source. Microsoft FUD
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