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.'"

Comments

Hate to break it to them

[transporter_ii]

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 , 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 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 . They have previously won a number of out of court settlements against other companies. Slashdot has previously mentioned the GPL Violations Project ."

Re:Hate to break it to them

[Qzukk]

No. The license is a contract. Their violation of the license means that they are in breach of that contract, it does not mean that a valid contract does not exist.

The issue is that the license and the license alone is what permits the redistribution of the copyrighted materials. If you breach the license/contract/whatever, then without it, you have copyright infringement. Neither does receiving copyrighted materials from someone else absolve you of the restrictions placed on you by copyright law.

Unless, of course, your belief is that it is a perfectly valid position to claim that the license is invalid and you're not going to follow the restrictions on it, but the license is still valid. I'd love to see what happens to the world if that becomes a precedent. "I think my cellphone contract is bogus so I'm not going to pay you. But I expect you to continue to provide cell service for the rest of the year because we have a contract." Or maybe "I think our cellphone contract is bogus so we're turning off your service tomorrow. But I expect you to continue to pay us for the rest of the year because we have a contract, or pay the early termination penalty." Sounds fun.

It's not being given away for free

[Frequency Domain]

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

Promotional CDs

[MightyYar]

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.

What part of the copyright act requires money?

[mark-t]

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?

[SirSlud]

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.

I can do that too!

[Herkum01]

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!

That won't fly in court

[Matt Perry]

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:Should be open and shut case.

[lightyear4]

I remember this story when it first came into public light. Given the volume of documentation available via JMRI, additionally via groklaw, 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.

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.

[killjoe]

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.

[SpecBear]

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.

EFF?

[macdaddy]

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.

Already a $30,000 miscarriage of justice

[dircha]

If you read the news on the site as well as the judge's order, you see that JMRI contributor Jacobsen brought Katzer and his company KAM to court in an effort to stop him from harassing Jacobsen at home and at work and from continuing to send and demand payment of bills in excess of $200,000 for imagined patent royalties for the distribution of open source JMRI.

Because Jacobsen basically made the wrong technical legal charges in an effort to gain relief from Katzer's false accusations and harassment, Jacobsen, the open source developer, ended up being forced to pay Katzer approximately $30,000 in legal fees.

It appears that Jacobsen represented himself.

Now, this situation in itself is deeply disturbing. Jacobsen apparently did not hire a lawyer, and what is disturbing is that he should NOT have had to hire a lawyer in order to get relief from bullying by Katzer and his corporation that was already interfering with Jacobsen's personal and professional life. Because he thought justice would be done for the little guy if you are just honest, he made charges that were technically wrong. An honest mistake. A technicality.

In the case of a private citizen against a corporation (KAM in this case), justice must not come down to whether the citizen dots his 'I's and crosses his 'T's. Justice must not be dependent upon the citizen's economic means. In this and many cases it clearly was. The legal system through which we must rely for relief from injustice such as this is truly a quagmire as we can see in this case by Jacobsen, clearly the victim, being forced to pay legal fees to a corporation because of a technicality.

Do you realize it is illegal in most states for an ordinary citizen to read try to help another citizen by answering questions about what a law even means - for attempting to understand on our own the laws the govern our lives? There is a tax on justice to the tune of $200/hour+.

Jacobsen should be able to go into a court, tell the court what is happening to him, and the COURT should look at the situation and say, look, you are the victim here, this is what laws this asshole is guilty of, if he does this again you come back here and we will punish him.

THAT is what should happen. I don't care how it is done. Maybe that means public attorneys who we can go to for legal advice and to file the correct charges in court. Maybe that means courts that we can just make in and the judge will be responsible for determining if and how he has been wronged. This isn't going to be popular with the trial lawyer lobby. The same as they have lobbied to make it illegal for us to try to help fellow citizens to understand the laws that govern our lives, they also strongly resist any move that would allow us people to get justice out of this system of ours without inserting quarters in their pockets just to play.

You won't see Republicans get behind this because their big business sugar daddies want to keep citizens under their thumbs. You won't see Democrats get behind this because they are in the pockets of the trial lawyer lobby.

A technicality is not justice at all. Fuck you KAM. And fuck you you goddamned lawyers who work for money not for what is just and true.

Re:Already a $30,000 miscarriage of justice

[mccoma]

Here is the disconnect for most people. If someone does something to me physically (assault, etc.), I can call the cops and they will handle the charges and deal with it. If someone is harassing me in a business sense, there is no entity in the US I can go explain what is going on and get some advice. Why can't I file a non-criminal complaint against them? They are the wrong doer, but I need to pay for justice. This is bull.

Re:you'd think, but...

[dircha]

The "problem" appears to be that Jacobsen represented himself and made legal charges that were technically wrong. I mean, he charged Katzer (KAM) on one count under anti-trust law. Read the judge's order. The issue with justice in our country, in my mind is illustrated here by the fact that Jacobsen is clearly the victim, yet because he did not have money to spend on a lawyer and made some technical legal blunders trying to do it on his own, he ends up getting bent over.

It's despicable, but that's how justice works in this country.

We need a system where a guy like Jacobsen here can just go down to the court, tell the judge in plain words what this fucker Katzer is doing to him, and get relief without having to put up big bucks for a lawyer and without facing $30,000 in essentially fines because of a technical screwup that someone without legal training can't be expected to have forseen.

Re:GPL

[stinerman]

I can't believe no one corrected you yet.

The GPL is a distribution license, not an End User Licence Agreement. EULAs are licenses to use the software. The GPL is a license to distribute the software. You do not have to agree to the GPL to use any GPL software. The GPL gives you more rights than default copyright gives. EULAs give less rights than default copyright.

I believe EULAs are invalid by the doctrine of first sale. But, of course, IANAL. I feel that if EULAs are upheld we're going to start seeing EULAs on automobiles and other such property. Imagine if the computer chip in a car would keep the car from starting if you weren't using a "certified" fuel filter or gasoline. Then if you tampered with the chip (your propery, mind you since you paid for it), the manufacturer would sue you under the DMCA. You'd scream bloody hell, but for some reason when it comes to software people take it in the ass.

Re:Should be open and shut case.

[dircha]

The problem in this case is quite clearly a system of justice that imposes an access fee, and a legal system that can not reasonably be comprehended by ordinary people. As you can see in the attorney fees awarded to Katzer against Jacobsen, it is a quagmire. One wrong step and you are out $30,000 to your abuser even when it is overwhelmingly clear to any ordinary person that you are the victim.

Either you pay the access fee - exorbitant private attorney fees - or you risk going into debt, even when no sane person would say you are guilty.

You won't see this issue on anyone's political platform either. Republicans are in bed with big business who don't want average joes to be on even playing fields, and Democrats are in bed with the trial lawyer lobbies. If average joes like Jacobsen the open source developer here can get free legal advice and get free representation to get relief from abusers like Katzer, all of a sudden all these lawyers are up in arms because most of those fuckers are more concerned with lining their own pockets than they are with truth and justice. They write our complex laws. They write our licenses and contracts. They lobby to guarantee themselves a monopoly on legal advice. And they will eat you up and spit you out if you so much as try to challenge them.

In order to get justice in this country we need to break the despicable monopoly on access imposed by private attorneys. We need to make them public. Access for all to justice is even MORE important than access for all to medical care. Maybe we can't afford the best medical care for everyone. But let it not be said that we did not guarantee every person regardless of race, class, ability or intelligence, Justice to its fullest.

You just don't get it

[A nonymous Coward]

The GPL gives you distribution rights provided you pass on those same distribution rights. The GPL does not give absolute irrevocable distribution rights. As soon as you violate the terms of the license, you lose those conditionally-granted distribution rights yourself, and it devolves back into a normal copyright case.

What the heck is so hard to understand about that?

The beauty of the GPL lies in its supremely elegant hack of using copyright to fight copyright. The ONLY way the GPL can fail is if copyright itself is declared null and void. If there are ANY flaws in the GPL, those EXTRA redistribution rights would automatically be cancelled. The GPL grants EXTRA rights, and if it fails, those extra rights die with it.

"I give you permission to pass around this program based on my copyrighted work, provided that you tell everyone you pass it to that they have this same right under the same conditions to a copy of the source code."

"OK."

"Hey, Joe just said you refused to give him the source code to that program."

"Yup."

"Bingo, you no longer have any rights to redistribute the program based on my source code."

Pretty damn simple.

What you are saying doesn't make sense

[sowth]

So you are saying if a software company sells CDs of their programs to retailers and permits the retailers to redistribute the CDs, then they've forfeited their copyrights? Retailers buy software specificly to resell and redistribute it.

Or how about software companies who make libraries for other software companies to use? If the companies who buy couldn't redistribute the libraries, the software they make themselves wouldn't be very useful. (Have you ever tried to run a program without a library it requires?)

You are essentially saying copyright is now lifted.

Wooo Hoo! Hey boys, fire up yer burners! We gon'a give 50,000 of our friends a copy o' Micer-sorft Winders Ex-Peeeoo!!! And it be all legal too! Yeah!

Re:What you are saying doesn't make sense

[Curunir_wolf]

The judge in Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998) has said that a "copyright owner who grants a non-exclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement"

Ok, IANAL (but I play one on /.). I read the decision that you have sited, and it cannot be applied to a case involving the GPL, for several reasons. First, the contract between Graham and James was strictly an oral contract for distribution rights, many terms of which had to be inferred by the district court. From the decision:

... Thus, as James concedes, the district court could not have found that Graham infringed James's copyright unless the licensing agreement already had been rescinded; the problem is that the district court made no such finding.

The GPL states explicitly that all rights granted by it are recinded if the terms are violated. So it's pretty simple to demonstrate that the agreement is void.

Further, the decision is based on whether the defendant could conclude that they maintained rights under the license, even though they had violated some terms. Check this out:

This argument turns--and fails--on the distinction in contract between a condition and a covenant. ... However, "[i]f the nature of a licensee's violation consists of a failure to satisfy a condition to the license . . ., it follows that the rights dependant upon satisfaction of such condition have not been effectively licensed, and therefore, any use by the licensee is without authority from the licensor and may therefore, constitute an infringement of copyright." [3 Nimmer on Copyright , supra , 10.15[A], at 10-120.] Id. at 10-121 (citations omitted);

The court makes the distinction here - and the GPL makes it explicit. The court is re-stating the affirmation that is used in the GPL itself, paraphrased as "violate the conditions of this license, and you have no rights to the code".

Sorry, but there is NO WAY that that decision can be used to argue that you are not liable for copyright infringement just because the code is being distributed under a license. Your interpretation of the case is just too simplistic.

Re:You're missing the point

[The Rizz]

The claim is that copyright does not apply if a license is offered.

Try run that one past Microsoft's attorneys when you start selling burned CDs of Vista, then come back and tell us how that went.