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Copyright Protection Problems For OSS Project

ScuttleMonkey posted more than 7 years ago | from the copy-wrong dept.

Open Source 390

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

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390 comments

FRIST PSOT (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#16832358)

btw, FOSS blows donkey chunks.

Re:FRIST PSOT (3, Funny)

Anonymous Coward | more than 7 years ago | (#16832406)

btw, FOSS blows donkey chunks.

So when did your mother change her name to "FOSS"?

Hate to break it to them (4, Insightful)

transporter_ii (986545) | more than 7 years ago | (#16832364)

Does something go into public domain just because it is posted somewhere for free (example: Usenet):

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

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

"The GPL Violations Project [gpl-violations.org] , based in Germany, have won (subject to appeal) a court case against D-Link, who had allegedly distributed parts of the Linux kernel in a product [gpl-violations.org] in a way which contravened the GPL. D-Link had claimed that the GPL was not 'legally binding' but have now agreed to cease and desist, and refrain from distributing the infringing product, a network attached storage device. Expenses, including legal expenses, were received by the plaintiffs; they did not request any damages, consistent with their policy [gpl-violations.org] . They have previously won a number of out of court settlements against other companies. Slashdot has previously mentioned the GPL Violations Project [slashdot.org] ."

Re:Hate to break it to them (4, Informative)

transporter_ii (986545) | more than 7 years ago | (#16832422)

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

Of course, to give credit, that came from:

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

Offtopic, but props. (0)

Anonymous Coward | more than 7 years ago | (#16832606)

I was just thinking that that sounded familiar :-) Seriously, nobody would have probably ever noticed or said anything, but your follow-up speaks well for you. Cheers and a virtual pat on the back.

Re:Hate to break it to them (4, Informative)

Software (179033) | more than 7 years ago | (#16832700)

I hate to break it to you, but the lawyers are not claiming that JMRI's software is in the public domain. They're claiming that the violation was not one of copyright, but one of licensing. From http://jmri.sourceforge.net/k/docket/100.pdf [sourceforge.net] (PDF warning; see page 13):

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

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

The filing also references Sun v Microsoft. It's also interesting because if you successfully apply this argument to other software, you would be immune from prosecution for running a warez site, though you'd still be on the hook for contract violation. IANAL, of course.

Re:Hate to break it to them (4, Interesting)

WolfWithoutAClause (162946) | more than 7 years ago | (#16832844)

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

So, prediction: they're going to lose.

Re:Hate to break it to them (1)

QuantumG (50515) | more than 7 years ago | (#16832976)

Yeah, I'm not sure they need a contract. If I receive the software from you and you receive the software from the licenser, then you might have a contract with the licenser, but I don't. If the licenser wasn't making an exclusive agreement with you and gave you redistribution rights, then I've done nothing wrong, you've done nothing wrong and I'm in no way bound by any contract you might have with the licenser. Look, let's put it another way. Say you bought a copy of Redhat Linux. You signed a contract with them to receive support. If you were to give me a copy of your software, that wouldn't entitle me to receive support, would it? Say you made some agreements to receive that support, like you wouldn't slag off Redhat in public forums.. I wouldn't be bound by that agreement anymore than they would be bound to give me support. It's clear that I can have a license to distribute Redhat Linux but not be bound by any contract to Redhat. Now, if what these people are saying is true, apparently Redhat can't sue me for copyright violation in this situation because they issued a non-exclusive license. Sounds absurd to me, but if it is true then we've all be labouring under a false assumption for years.

Re:Hate to break it to them (4, Informative)

QuantumG (50515) | more than 7 years ago | (#16833040)

from http://laws.lp.findlaw.com/9th/9915046.html [findlaw.com]


Whether this is a copyright or a contract case turns on
whether the compatibility provisions help define the scope of
the license. Generally, a "copyright owner who grants a non-
exclusive license to use his copyrighted material waives his
right to sue the licensee for copyright infringement " and can
sue only for breach of contract. Graham v. James , 144 F.3d
229, 236 (2d Cir. 1998) (citing Peer Int'l Corp. v. Pansa
Records, Inc., 909 F.2d 1332, 1338-39 (9th Cir. 1990)). If,
however, a license is limited in scope and the licensee acts
outside the scope, the licensor can bring an action for copy-
right infringement. See S.O.S., Inc. v. Payday, Inc., 886 F.2d
1081, 1087 (9th Cir. 1989); Nimmer on Copyright , S 1015[A]
(1999).

Re:Hate to break it to YOU (0)

Anonymous Coward | more than 7 years ago | (#16832728)

The D-Link case was in Germany, and German copyright law and precedents are quite different here in the US. Whatever happened in Germany simply does not apply here, and the GPL victory there is not a precedent here.

It's not being given away for free (5, Insightful)

Frequency Domain (601421) | more than 7 years ago | (#16832366)

It's being given away with conditions. The condition is that you obey the licensing agreement.

Yes! Give the man a cigar! (0)

Anonymous Coward | more than 7 years ago | (#16832434)

Where the heck are my mod points when I need them?

Ah, yes... Anonymous Coward gets no mod points. Sorry.

Re:It's not being given away for free (1)

dhasenan (758719) | more than 7 years ago | (#16832574)

The software and source code is indeed being given away for free. But that alone doesn't give anyone redistribution rights. You get redistribution rights exactly on the condition that you obey the licensing agreement.

Re:It's not being given away for free (1)

MostAwesomeDude (980382) | more than 7 years ago | (#16832644)

Um, no.

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

Promotional CDs (4, Insightful)

MightyYar (622222) | more than 7 years ago | (#16832370)

LOL, now I can sell copies of all those promotional CDs that I got in college!

I'm pretty sure that this defense won't work.

Re:Promotional CDs (1)

i_should_be_working (720372) | more than 7 years ago | (#16832448)

Pfft! That's small time. I'm gonna sell this great software toolkit I just acquired. [slashdot.org]

Re:Promotional CDs (1)

despisethesun (880261) | more than 7 years ago | (#16832682)

Actually, that's A-OK for you to do under the GPL. However, as you're not the original copyright holder, you'd have to make the source code available to any of your customers who asks for it.

Re:Promotional CDs (1)

pegr (46683) | more than 7 years ago | (#16832562)

LOL, now I can sell copies of all those promotional CDs that I got in college!
 
As long as you didn't install them and invoke the EULA, you sure can. Or are you telling me that you are subject to an illegal EULA you didn't even click-thru? If so, the industry has succeeded in brainwashing you!

Re:Promotional CDs (1)

MightyYar (622222) | more than 7 years ago | (#16832636)

Well, it was a joke, but...

Note the word "copies" in my one-liner. You can't sell copies of a CD without express permission of the rights holder, EULA or no EULA.

Re:Promotional CDs (1)

Al Dimond (792444) | more than 7 years ago | (#16832648)

He can sell the physical CDs, sure. He can't copy the contents and distribute those copies because that's a violation of copyright law. I think the latter is what OP was getting at.

Re:Promotional CDs (0)

Anonymous Coward | more than 7 years ago | (#16833016)

This brings up an interesting point. How can most of the people who are cheer leading for the underdog open source (and rightfully so IMO) against a company illegally using their stuff, be the same people who want the RIAA to look the other way when we copy and use their music at no cost?

Just playing the devil's advocate, I'd like to see an explanation of the difference, besides the robin hood principle.

Re:Promotional CDs (1)

MightyYar (622222) | more than 7 years ago | (#16833102)

It's not a contradictory attitude at all. In both cases, you want information to be free. That one of the strategies happens to use the legal system is neither here nor there.

Personally, I'd hate to see copyright law go away altogether. I'd prefer that it only apply to commercial transactions, however. I'd also like the term to be something like 15 years - I don't understand why copyrights are so much longer in duration than patents... the goal is essentially the same.

So... buying hardware... (0)

Anonymous Coward | more than 7 years ago | (#16832376)

This means that whenever I buy hardware, I can do whatever I want with the software, right?

What part of the copyright act requires money? (5, Insightful)

mark-t (151149) | more than 7 years ago | (#16832392)

Because as far as I can tell there is nothing in the copyright act implies that just because a copyright holder is not making any financial profit off of his work that he in some way forfeits any of his rights as the copyright holder.

Re:What part of the copyright act requires money? (5, Insightful)

SirSlud (67381) | more than 7 years ago | (#16832552)

It seems to be under the popular assumption that if you don't ask for financial compensation for produced works, you deserve to belong to a downtrodden class of anti-capitalist authors undeserving of the sections of law which were originally created to grant an author the power to dictate the terms of use for his or her work within a limited time frame.

I'm sure the actual case is more complicated and nuanced that that, however.

Re:What part of the copyright act requires money? (1)

QuantumG (50515) | more than 7 years ago | (#16833142)

I hate to say, "if you read the article" but the key part is not money, it's the "non-exclusive" license.

I can do that too! (4, Insightful)

Herkum01 (592704) | more than 7 years ago | (#16832394)

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

IT'S FREE!

ANYTHING GOES!

Should be open and shut case. (2, Funny)

matts-reign (824586) | more than 7 years ago | (#16832396)

There is no way I can see JMRI losing, if the American court system has any integrity left at all. You can't get much more blatantly violating copyright than this. Its outrageous.

Re:Should be open and shut case. (4, Insightful)

lightyear4 (852813) | more than 7 years ago | (#16832548)

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

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


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

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

Re:Should be open and shut case. (1)

liquidpele (663430) | more than 7 years ago | (#16832696)

So if they do loose, someone get a "demo" copy of Katzer's product for free, then strip out stuff and hack it into their own product and sell it. You could use their own winning case as a precedent to defend your actions for stealing their work.

Re:Should be open and shut case. (4, Insightful)

killjoe (766577) | more than 7 years ago | (#16832910)

The american justice system works perfectly for those that designed it. It's a system for and by the rich. The single biggest factor in whether you win or lose a case is how much money you have to spend on it.

Re:Should be open and shut case. (1)

tap (18562) | more than 7 years ago | (#16832594)

I doesn't seem possible that they would lose the anti-SLAPP lawsuit, but they did. They can lose this too. Copyright law is different depending on the size of the holder of the copyrights. If massive copyright holder like a record studio thinks their copyrights are getting violated, the FBI investigates. This never happens if an open source project has its copyrights violated.

Imagine if they lost (1)

Evil Pete (73279) | more than 7 years ago | (#16832862)

If they lose then that means that all images and text from all websites are free to use whether there is a copyright on them or not since they have been 'given away' to your PC free of charge.

Apart from that only a dope would rule against JMRI.

Re:Imagine if they lost (1)

aussie_a (778472) | more than 7 years ago | (#16833008)

Don't forget free to air television. Will the MPAA be stepping up to help with JMRI's case? After all, many movies are played on free to air tv.

Re:Should be open and shut case. (3, Insightful)

SpecBear (769433) | more than 7 years ago | (#16832996)

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

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

Naked woman on the roof! (4, Funny)

BadAnalogyGuy (945258) | more than 7 years ago | (#16832400)

You can't wave your boobs around from the balcony expecting everyone who looks to toss you some beads. Once you're out there, you're out there and if no one gives you a strand then that's really your own fault for putting yourself on the line in the first place.

It is kind of weird to expect that someone ought to play your game when you've already given up your whole hand.

Re:Naked woman on the roof! (1)

nick.ian.k (987094) | more than 7 years ago | (#16832536)

You can't wave your boobs around from the balcony expecting everyone who looks to toss you some beads. Once you're out there, you're out there and if no one gives you a strand then that's really your own fault for putting yourself on the line in the first place.

The case isn't about anyone demanding beads, but rather, someone else has tried to take the poor girl's boobs, and...

Re:Naked woman on the roof! (3, Funny)

Anonymous Coward | more than 7 years ago | (#16832634)

Boy do you sure live up to your nick.

Re:Naked woman on the roof! (2)

ivan256 (17499) | more than 7 years ago | (#16832930)

I think it would be fun to write a script to emulate BadAnalogyGuy. I bet nobody would notice the difference. Hell, BadAnalogyGuy may already be a script! I think I'll put it on my list of 1,000,000 projects I want to do.

That won't fly in court (4, Insightful)

Matt Perry (793115) | more than 7 years ago | (#16832412)

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

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


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

Re:That won't fly in court (0)

Anonymous Coward | more than 7 years ago | (#16832550)

What's that word? I am searching for a word. It is on the tip of my tongue. I can't quite get it. Okay, now I have it. Um. Frivolous. Yep. That's the word.

I hope they nail these guys to the wall.

Re:That won't fly in court (1)

SirSlud (67381) | more than 7 years ago | (#16832632)

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

If the case is as simple as, "They showed their hand without being protected by patent, and therefore we can steal it," well, then we have a problem. Software is subject to copyright, even tho you don't spend any money to *anybody* on your behalf who is licensing it. Its not like you're not paying your television companies, who in term pay for licensing the rights to broadcast Star Wars. In this case, no author of the content gets payed, and nothing angers capitalist pedantics like somebody who asks for something other than money for their work.

Re:That won't fly in court (1)

pegr (46683) | more than 7 years ago | (#16832938)

Tho I agree with your intent, thats not a fair example because you do pay for television via taxes for public broadcast and subscriptions for cable, etc.
 
No, you pay for (over the air) TV by watching ads...

Re:That won't fly in court (1, Funny)

Anonymous Coward | more than 7 years ago | (#16832726)

Matt's Space Adventure was great until the the Special Editions. Horace shooting first? Not on my watch, buddy.

you'd think, but... (5, Interesting)

SuperBanana (662181) | more than 7 years ago | (#16833110)

Yeah, right.

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

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

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

Read the brief they filed - he *may* be right (1, Interesting)

Anonymous Coward | more than 7 years ago | (#16832420)

Yeah, I know, I'm not just asking folks to RTFA, I'm asking them to click on and read the links in TFA.

The Ninth Circus may have doomed OSS.

IANAL, though.

Re:Read the brief they filed - he *may* be right (1)

BadAnalogyGuy (945258) | more than 7 years ago | (#16832520)

I found especially amusing that JMRI was failing the motion on the sole basis that they felt they would eventually prevail.

Like so much blather on this site, rather than come up with substantive opinions based on facts and evidence, people would rather wallow in their self-confident ignorance.

"I'm right, therefore you're wrong."

That only works on Slashdot, you fucking moron.

Re:Read the brief they filed - he *may* be right (1)

MightyYar (622222) | more than 7 years ago | (#16832560)

Well, I'm no lawyer either, but this just doesn't make any logical sense:

Specifically, defendants seek to dismiss the state law claims (unfair competition and
unjust enrichment) as they are preempted by federal copyright law. 17 U.S.C. 301.
Defendants seek to dismiss the Copyright Act claim on the basis that the right to bring a
copyright infringement claim has been waived since Jacobsen granted the general public a
nonexclusive license to reproduce, copy and distribute the open source software.

IANAL, but if I am reading this thing correctly, they are arguing first that the state charges should be dropped because this is a copyright case and thus falls under Federal jurisdiction. Then they argue that this is not a copyright case, but a contract case? I know that lawyers speak a different language than the rest of us, but... can someone point out my error?

Re:Read the brief they filed - he *may* be right (1)

Fulcrum of Evil (560260) | more than 7 years ago | (#16832826)

Then they argue that this is not a copyright case, but a contract case? I know that lawyers speak a different language than the rest of us, but... can someone point out my error?

I'm envisioning the defense attorney taking potshots, seeing what'll hit. As for the copyright/contract case, they seem to be arguing that since the stuff is distributed under the GPL, they accepted that license and are now accused of violating it. Since ISTR that the GPL has a clause stating that violating the contract voids it, wouldn't it still be a copyright case?

Re:Read the brief they filed - he *may* be right (1)

epee1221 (873140) | more than 7 years ago | (#16832894)

And then they argue that they can pick and choose which parts of the contract to honor.

Get the devil to help (3, Interesting)

sqlrob (173498) | more than 7 years ago | (#16832424)

I'm sure MPAA, RIAA, ESA, BSA and friends will have something to say aboutthis. Some of their software then gets hit pretty hard (demos aren't copyrighted, snag the code!; MP3s of songs; clips of movies; movie promotional materials on a website...)

I recognize that I know nothing about this topic (1, Insightful)

Anonymous Coward | more than 7 years ago | (#16832450)

or specific instance, thus any commentary on my behalf would mean I am talking out of my ass.

Doesn't matter. (1)

ScrewMaster (602015) | more than 7 years ago | (#16832554)

I recognize that I know nothing about this topic

Me too.

thus any commentary on my behalf would mean I am talking out of my ass.

Never stopped me before.

Of course not (0)

Anonymous Coward | more than 7 years ago | (#16832608)

You're just an atypical /.er

Re:Doesn't matter. (2, Insightful)

DeadChobi (740395) | more than 7 years ago | (#16833078)

Some of my best-moderated stuff comes from me talking out my ass. It works every time! It's funny, but when I actually do know what the hell I'm talking about I don't get anything.

what an asshole! (0)

Anonymous Coward | more than 7 years ago | (#16832460)

"Katzer took JMRI copyrighted code, stripped out authors' names and JMRI copyright notices, converted it to his own use and then distributed it as his own."

ridculous..

i'm going to break your door down, steal your stereo, then sell it so i can buy myself a new stereo.. fuck you pay me.

newclear power a problem for unprecedented evile (0, Troll)

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Copyright stance memo! (1)

chrispatch (578882) | more than 7 years ago | (#16832486)

Ok. I know it is hard to keep track. Today we are for copyrights.

Re:Copyright stance memo! (1)

fossa (212602) | more than 7 years ago | (#16832676)

You're right. It is black and white. One may only be for or against copyright at any given moment.

Re:Copyright stance memo! (2)

openright (968536) | more than 7 years ago | (#16832784)

Copyrights are 95 years, such that the public domain is effectively dead.

Open source/creative commons have taken the place of the public domain.

So yes, copyright law way too long.
But while it is that way, then open source is a workaround that uses copyright law to protect the work for public use through licensing.

Re:Copyright stance memo! (0)

Anonymous Coward | more than 7 years ago | (#16833148)

For copyright.

Against software patents.

A Big problem with this (1)

RobertLTux (260313) | more than 7 years ago | (#16832514)

would they like The Nazgul The MoFos or The ShadowMan to explain this to them

This would be of course The International Business Machine legal team the Novell legal team and just for fun The Redhat legal team (not to mention that The FSF legal team would get perky over this).
The Parralel Universe that TSCOG is in seems SANE compared to the one that these clowns are in.

There is no such thing as "free" lunch.... (1)

feranick (858651) | more than 7 years ago | (#16832516)

(free as in freedom). According to GPL, free as in beer does not mean free as in freedom. I know it seems trivial to most of us, but some companies seems to make some confusion....

The copyright fallacy in a nutshell, finally! (3, Informative)

Weaselmancer (533834) | more than 7 years ago | (#16832556)

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

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

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

Re:The copyright fallacy in a nutshell, finally! (1)

Mr2001 (90979) | more than 7 years ago | (#16833098)

It's not even about ownership. You can't "own" a number. It's about the government granting you veto power, for a limited time and in limited circumstances, over other people's speech.

Re:The copyright fallacy in a nutshell, finally! (0)

Anonymous Coward | more than 7 years ago | (#16833146)

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

lol, I love this. The same crowd indignantly defending copyright here is the same one that thinks that authors, and the publishers that represent them, should thank Google for scanning their works and publishing a searchable database with extracts, for public use.

"Why are they whining? Google will actually MAKE THEM MORE MONEY!"

The hypocrisy in the /. groupthink is breathtaking.

Program in Question (1)

dantheman82 (765429) | more than 7 years ago | (#16832604)

This [trainpriority.com] is the program in question that is apparently copying from the JMRI program. Interestingly, it wasn't included on the JMRI page...

A silly motion admitting clients infringement (0)

Anonymous Coward | more than 7 years ago | (#16832656)

They're claiming that copyright is pre-empted by state law because there was no "bilateral expectation of compensation". This is wrong, the copyright license defines preconditions for redistribution and compliance with these conditions is a form of compensation. Other than that they admit these guys ripped off the decoder definition files from JMRI and failed to respect the copyright. Lawyers forced to plead the bad faith of their clients are not in a good position.

This is an interesting case, I can't help but feel that if they used the GPL then the position would be that much stronger, certainly more people would be prepared to rattle sabres over it.

"available on internet" means "copyright void"?? (0)

Anonymous Coward | more than 7 years ago | (#16832658)

If "available on internet" means "copyright void", it would have much more broad implications than just with open source.
Of course no sane judge would rule such a thing. And no such ruling would stand.

open source is not giving up copyrights, it describes specific copy allowances/exceptions.

If the license is invalid, then any allowances are void.

If the "contract"/license is not followed (or not valid), then use of the work is a copyright violation.

Judge: what permission do you have to copy the work.
xxx: everything on internet has void copyright/
Judge: try again
xxx: the license allows me to.
Judge: well it looks that you are violating a,b,c and d in the license.
xxx: perhaps, but this is a contract dispute.
Judge: was there some permission besides the license/contract that lets you copy?
xxx: no
Judge: You have blatantly violated the only terms which could allow copying.
Judge: pay up.

The guts of the claim (1)

tolomea (1026104) | more than 7 years ago | (#16832710)

IANAL

The guts of the claim seems to be that the rights granted by copyright are:
Section 106 of the Copyright Act grants a copyright holder the ex exclusive right to reproduce, prepar clusive prepare derivative works of, distribute, display, and perform the copyrighted material.
And that the particular opensource licence grants non exclusive rights to do these provided that certian conditions are obeyed.
They then cite Sun vs Microsoft (the Java case) precedent where the judge ruled that copyright claims can only cover the rights granted by copyright and that the other restrictions are a matter of contract law. Based on this they argue that the claim of copyright violation should be thrown out.

Now IANAL but based on the precedent they seem to have a valid point, however as far as I can see there is nothing here to stop it being relodged as a contract claim.
Here's the docs [sourceforge.net] it starts on page 13

Re:The guts of the claim (0)

Anonymous Coward | more than 7 years ago | (#16832880)

"giving credit to the JMRI project" is not a right protected by section 106 of the copyright act.

They then go on to say that their client is guilty of a "breach of license agreement claim against the licensee, not a copyright infringement claim." ROTFLMAO. These lawyers don't understand copyright licenses, if a distributor breaches license terms then they have no license, ergo "copyright infringement"!

I'm not familiar with the MS/Sun ruling but this motion is utter drivel and the whole case rather stupid.

Now I am familiar (0)

Anonymous Coward | more than 7 years ago | (#16833122)

One by one the dominoes fall... (3, Informative)

Aim Here (765712) | more than 7 years ago | (#16832738)

Whee!

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

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

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

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

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

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

Looks like free software's legal foundations are being solidly built as we speak...

The most shocking thing about all of this... (0)

Anonymous Coward | more than 7 years ago | (#16832744)

...is that this project is all about software for model railroad controllers! LOL!!!

I'm sorry, but the only trains that matter are l337 trains [rofl.name]!

Cool! (1)

iamacat (583406) | more than 7 years ago | (#16832760)

Now there is no copyright on free downloads such as Windows update, Sun's Java and songs downloaded during Napster trial - or for that matter any trial/update software.

Established precedent in print journalism (4, Informative)

Rinisari (521266) | more than 7 years ago | (#16832792)

I don't know how well it would apply to software, but there is an established precedent in publishing that says it is illegal to steal things that are offered for free. An example of this would be taking an inordinate amount of free newspapers from the stands.

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

In the software world, the open source plaintiffs could argue that, while their product is offered for free, it was not produced for free. That, and the license under which the defendant agreed to use the software specifically states that they must follow the terms of the license in order to use the software.

Take that analogy a step further (1)

hellfire (86129) | more than 7 years ago | (#16833066)

You can't take a free newspaper and then turn around and resell it to someone else for $.25 a copy, either.

Re:Take that analogy a step further (1)

Mr2001 (90979) | more than 7 years ago | (#16833124)

Of course you can. What law would you be breaking by taking a newspaper--a physical object--off the stand for free and then selling it to someone else for 25 cents?

I Think That SCO Tried This (2, Interesting)

Stephen Samuel (106962) | more than 7 years ago | (#16832830)

I'm pretty sure that SCO flew an argument like this early on in their IBM litigation. They're still waiting for the foot-shaped bruise on their butts to fade. Among other things, the Copyright Act apparently explicitly allows a copyright owner to trade access to their material for copyright material of the recipient -- which is precisely what the GPL does.


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

Another example (2, Interesting)

HomelessInLaJolla (1026842) | more than 7 years ago | (#16832858)

People with means and money steal from those who do not, with blatant disregard of laws which they would use in a heartbeat to protect themselves if the tables were turned. In the Quick Overview on the JMRI home page it is stated that, not only is Katzer using JMRI's software without giving them due credit, but Katzer is attempted to obtain money per copy from JMRI for the distribution of their own code using a patent to show ownership while completely ignoring the prior art. According to the JMRI website Katzer has gone so far as to contact the employer of one of the JMRI contributors, Bob Jacobsen, in an effort to intimidate Bob into bending to Katzer's desires.

It happens all the time. Consider the following example in which a private author made a post to a forum [maps.org] debunking an article which attempted to associate marijuana use with an acute risk of cardiac arrest. That post was subsequently misquoted and the subject line taken out of context [heartdiseaseguru.com] in the interest of expressing the exact opposite opinion, promote a product, sell advertising space, and defame the original author by putting words in their mouth. When human resources representatives came across the heartdiseaseguru.com page while scraping the web for employees' e-mail addresses, the private author subsequently experienced a complete loss of credibility in the workplace due to: an alleged heart attack which wasn't reported in the preemployment screening (which never happened), alleged marijuana use (which the employer would never have known about), and a propensity for making completely unsubstantiated claims (that marijuana use is a cause of an acute heart attack). The heartdiseaseguru.com web page is regenerated each time it is loaded. About one out of every five page loads will result in the story on the side reading with a line "Steven Maximilln maximilln at hotmail.com reported using the drug within an hour before heart attack". This implies that the author does use marijuana and has had a heart attack--neither of which is true according to the original post on the MAPS forum.

Thankfully the JMRI team has legal counsel available to them. Let's hope that they are able to secure a true and just judgement which will preserve their rights to their own code. The private author in the example above endured harassment, loss of promotion options, and eventually became homeless. Every attorney contacted to remedy the situation has asked for a retainer fee to even look at the two web links cited above.

Giving something away for free removes copyright? (1)

TBBle (72184) | more than 7 years ago | (#16832866)

Oh, a business opportunity!

1) Download Windows 2003 Server R2 demo disks free from the MS website
2) Remove the time-restriction
3) Burn onto professional-looking CD-Rs and sell at 60% of MS retail
4) Profit

I could sell one copy a week and make more than I'm making now, which would leave me lots of time free to spend in court when MS realises that they're going to have to help defend an open source project's copyright to save their own... ^_^

The most troublesome part - lawyer comments please (2, Interesting)

Anonymous Coward | more than 7 years ago | (#16832886)

The most worrying part here is that the anti-SLAPP lawsuit won.

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

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

Thanks.

It's an old argument (1)

Jeremi (14640) | more than 7 years ago | (#16832902)

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


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

Summary title is misleading (1)

RealGrouchy (943109) | more than 7 years ago | (#16832906)

The fact that you claim something in court, and they defend it, doesn't amount to "copyright protection problems".

Let's suppose an animal rights activist stole my fur jacket, and I sued them. They could claim all they want, such as I didn't have the right to wear animals' fur. But the fact of the matter is the law weighs pretty heavily in my favour, even if this were a novel defense.

Now, if the judge were to agree with the defense, then I'd have some "problem"s.

- RG>

Who they are (3, Informative)

loconet (415875) | more than 7 years ago | (#16832908)

Here is a bit of background information on the company using this Chewbacca style defence.

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

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

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

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

I would personally stay away from any company whose management cannot understand basic copyright regulation and attempts to defend itself with such a nonsense argument as "the software is being given away for free".

Just one question (0)

djupedal (584558) | more than 7 years ago | (#16833014)

When you wrote your software, and released it with the standard OSS disclaimers and how it was 'free' under such-and-such conditions, what was your expectation at that time?

Did you expect OSS chartered/legal claims to protect you if someone dipped their quill into your ink, or did you expect individuals to police themselves and do the right thing?

Be honest...I'll bet if anything, it was the latter scenario that passed thru your head.

In addition, I'd be willing to bet that before this incident, you were a copyright virgin. You had no direct experience with purloined content and willingly put yourself into the position found today. Now, don't get me wrong. I've had entire websites cloned without so much as a piss-off.

You may have had more luck going to his ISP and mentioning that they were contributing to his wrong-doing, and you needed their lawyers' contact info so you could proceed to close things down. As it is now, you are forced to defend yourself after the fact, and the only thing you may gain is experience, sad to say.

Artistic License (1)

mitchskin (226035) | more than 7 years ago | (#16833056)

The people who are using JMRI's software without abiding by the license terms are clearly assholes, and I'll enjoy watching them lose this court battle.

That said, the project made things harder for their attorney by using the Artistic License. Wanting to avoid legalese is a nice sentiment, but it made the Artistic License less clear than it should be, and now the attorney is having to do extra work to shore it up (this takes up a big chunk of their November 3rd opposition).

Pro Se (2, Funny)

Eric Damron (553630) | more than 7 years ago | (#16833126)

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

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

Just because you include the source code in no way nullifies your copyright. IANAL but even I know that much. The fact that the user accepted the license testifies to the fact that he acknowledges the copyright because one can not give a license to a software product without having the copyright.

This lawyer's case is going down like a cheap whore.

EFF? (5, Insightful)

macdaddy (38372) | more than 7 years ago | (#16833138)

Where the hell is the EFF in all of this? What are my dues paying for if not to take on easy but important cases like this one? These people need some compotent lawyers on their side or this is going to end up in a bad way.
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