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Copyright Protection Problems For OSS Project
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.'"
Of course, to give credit, that came from:
h s.html
10 Big Myths about copyright explained
http://www.templetons.com/brad/copymyt
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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.
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.
Colin Dean Go a year without DRM
How we know is more important than what we know.
They absolutely need to agree to a license (not sign a contract) to use the software. The terms of the license say that you have the traditional rights granted by copyright (which means you're not allowed to copy someone else's original work), but that *if* you comply with the terms of the license, they'll grant you the right to redistribute, modify, etc.
One of the conditions in the terms of the license is that you aren't allowed to *change* the terms of the license in a number of ways. If you do, then those rights are rescinded, and you go back to only having the rights granted under copyright law (which means, you have to ask my permission to do anything with it).
You said (in part):
You're bound by the terms of the license that the software is distributed under. The person who distributed the software to you did so with the knowledge that there were certain things that had to be done to be in compliance with the license. One of those things is to make sure that the license is distributed with the software, so that it's clear what's allowed and what's not.
If you received the software without the license (i.e. the person who distributed it failed in their duties to comply with the licensing requirements), then that doesn't mean you are allowed to ignore copyright law or that your copy is magically license free. Just ask the folks at the BSA about that. Millions of illegally-licensed copies of Windows are installed and used every year, and there are very real penalties for knowingly doing so.
You also said:
If the contract was for support, then they paid for support. The license is a separate thing...it covers under what conditions you may use the software under, not whether you will receive support.
You mentioned that you wouldn't be bound by that agreement (the support one) any more than redhat would be bound to give you support. True, since you didn't enter into a support contract with them (although you could do so very easily). You then mentioned that:
This almost true, since you would be bound by the terms of the license of the software you received, not by a contract signed directly with a particular company or person. Traditionally, copyright was the only legal condition allowed for distributing a work, but the GPL is becoming common, and allows more freedom. The GPL says (in part):
The only reason you are *ever* allowed to redistribute is because of the license. If you don't accept the terms of the license, there isn't anything else that magically gives you distribution rights. It doesn't matter if you got it direct from RedHat, or from some guy in a van behind a seedy building, the only rights you have are copyright and the license the work is distributed under. Copyright gives you certain fair-use rights, none of which would apply to you distributing someone else's software.
"Murphy was an optimist" - O'Toole's commentary on Murphy's Law
If you read the actual court documents, what the defense seems to be saying is that the license (which evidently isn't GPL - it's some kind of Xfree or Berkely style license) requires them only to give credit to the authors - which they have evidently not done and this they do not seem to deny (although, of course they don't admit it either!). The significant part of their argument is that say that the consequence of their failure to do so is not a violation of copyright law - but instead a breach of the license terms of the software. Then they point to Sun vs Microsoft over Java in which it was ruled that MS had not violated copyright law but had instead breached the terms of their license.
IANAL - but that seems reasonable to me. Of course now they need to be stuck with a charge of breaching the license terms - but that's evidently not what the prosecution have accused them of. The problem is that the Xfree and similar licenses don't have cast-iron legal language as GPL does - so with weak language describing the 'licensing' terms - it seems possible that the defendants could indeed weasel their way out of this.
Personally, I think that if you are going to use one of those licenses, the best you could hope for is a one line mention in the very small print of the Albanian section of the user manual - somewhere between the environmental impact statement and the warning not to let children under 3 years play with the software because of choking hazards. Why the heck you'd find that important escapes me. If you want solid copyright protection, use the GPL - if you want utter freedom for people to do whatever they like with your code - then don't be surprised when they do exactly that.
www.sjbaker.org
My interpretation is that as long as you provide a link to the author's web page somewhere on your site, you are golden.
Sounds like you can incorporate the open-source code into a commercial program, as long as you do not advertise that you are using it!
There are also no patent requirements -- at all! Which means someone can patent the ideas in the source code and then sue the original copyright holder -- while distributing the code! Since the existence of prior art does not render an issued patent invalid, this is a distinct possibility. Not to mention, how are you going to argue monetary damages if there are barely any restrictions?
Really, it sounds like the guy suing JMRI is mostly in the right, legally speaking. The artistic license may not be enforceable, and appears to give him the right to distribute the code commercially. The breach of contract suit won't yield any monetary damages -- the license is not restrictive enough. His patents are valid (at least until the USPTO revokes them, which may never happen). All I can say is... should have used the GPL.