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

[transporter_ii]

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

Re:Hate to break it to them

[Software]

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 (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

[cpt kangarooski]

There are actually some exceptions to that, but more or less, yeah.

Re:Hate to break it to them

[WolfWithoutAClause]

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

[QuantumG]

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

[QuantumG]

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

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 them

[cunkel]

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

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.

Applying contract law, instead of copyright law, would seem to be to the defendant's advantage, because, in order to recieve damages, JMRI will have to show a material breach of contract. That is, they will have to show that they suffered harm. That may be made more difficult by the fact that they have been licensing the software free of charge, because JMRI can't argue that, by defendants distributing the software in violation of license, JMRI is losing revenue from selling licenses.

Re:Hate to break it to them

[babbling]

You're absolutely right, although I don't mind too much if they win this. If they did win, it would have some pretty massive repercussions for television shows that are broadcast, anything you can find on the internet without putting in your credit card number, and anything else that someone can manage to obtain for free sometimes.

Re:Hate to break it to them

[dhasenan]

The RedHat support contract probably limits transfers and precludes sublicensing. The GPL, on the other hand, requires that you use the GPL in all derivative works and whenever you redistribute a GPL work. A support contract refers to a service; the GPL, to a text. They're largely incomparable.

Re:Hate to break it to them

[drakaan]

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):

"...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..."

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:

"...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?..."

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:

"...It's clear that I can have a license to distribute Redhat Linux but not be bound by any contract to Redhat..."

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):

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

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.

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.

Re:Hate to break it to them

[KwKSilver]

Well put! Followed to its logical conclusion, the results are absurd.

Re:Hate to break it to them

[Tran]

Precident? Not sure if you understand copyright if you dont know that the word is precedent. Since you emphasized the word, one cannot accept the excuse of a typo.

Re:Hate to break it to them

[epee1221]

I don't find any 1998 precidents in TFA, although, I have only read the first link (and the documents to which it links) of the four in the summary. All I ran across was a 1999 precedent that licensors cannot sue licensees for actions permitted by the license.
Since you appear to have found something different, would you mind posting a link to it? I don't want to spend all night duplicating your research.

Re:Hate to break it to them

[pete-classic]

Is this a typo?

They absolutely need to agree to a license (not sign a contract) to use the software.

If not, you couldn't be more wrong:

You are not required to agree to anything to merely use software which is licensed under the GPL. You only have obligations if you modify or distribute the software.

-Peter

Re:Hate to break it to them

[QuantumG]

Here ya go one of my other comments. I know, there are a lot.

Re:Hate to break it to them

[WolfWithoutAClause]

Yeah, but from the Microsoft vs Sun license disagreement:

[7] 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).

In the case of Sun vs Microsoft, there were different clauses that disagreed with each other, which pushed it into a contract dispute. In this case, there's almost certainly no disagreement in the clauses, the OSS guys have a rock-solid, clear license/contract, and theres no argument that an infringer is outside it and hence into copyright infringement territory. Also the American law specifically tilts the playing field in cases like this towards copyright law; where there is a presumption of substantial harm (i.e. even if you're not trying to necessarily sell anything, if somebody uses your copyrighted material you can sue their ass off.) So the fact that it's free software is immaterial.

Re:Hate to break it to them

[NormalVisual]

In your quoted comment it says, "If, however, a license is limited in scope and the licensee acts outside the scope, the licensor can bring an action for copyright infringement." The situation here isn't the same as it was in the Sun vs. Microsoft action. In that case, Microsoft altered Java so as to be incompatible with the standard, in violation of their license agreement. That was clearly a contract issue. Microsoft never attempted to represent Java as being of their own creation except to the extent that it was Microsoft's version of the Sun product, and MS's version was clearly a "derivative work" as provided for in their contract with Sun.

Here however, we're dealing with a company that is blatantly misrepresenting others' work as their own and profiting from it without any attribution to the original authors, which is *way* outside the scope of the GPL and seems to me to be a textbook case of copyright (and possibly trademark) infringement. It doesn't appear that there was even the slightest intent to abide by the licensing terms that the software was offered under, so I'd think one could even argue that no licensing agreement existed between the parties involved.

Re:Hate to break it to them

[QuantumG]

The situation here isn't the same as it was in the Sun vs. Microsoft action. In that case, Microsoft altered Java so as to be incompatible with the standard, in violation of their license agreement. That was clearly a contract issue.

Uhhh, what's clear about that? The whole point of the Sun vs. Microsoft action was that Microsoft didn't have a contract with Sun because Microsoft obtained the source from from a third party. What Microsoft then claimed was that Sun couldn't sue them because this precedent states that allowing third parties to redistribute forfeits your right to sue for copyright infringement. The same situation exists here. Don't get me wrong, I'm not saying these people are not violating the license on this software (which happens to be the GPL). They definitely are, ok, no question. But this precedent states that it doesn't matter because even though they are violating the license, the licensor doesn't actually have the right to sue. They've forfeit that right by allowing third parties to redistribute the work. The courts think this is reasonable because they assume that you only gave this right to redistribute to someone under contract and that contract held them responsible for any copyright infringement that the people they redistribute to happen to engage in. The courts consider that the only sensible way to give someone redistributing rights. Obviously the courts are wrong, hello? heard of the GPL? well no, they havn't.. they don't take that stuff into consideration when making precedents like this.

Now the court case that the article says is happening now will possibly set a new precedent.. specifically stating that people who license their software under the GPL have no right to sue third parties for copyright violation. If that happens then the Free Software community is in big trouble. We'll probably have to come up with some new wording that causes an implicit contract to be formed between copyright holder and third parties. This will probably require "consideration", i.e., money will have to change hands. This is scary shit ok?

Re:Hate to break it to them

[mpe]

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

Anything which applied to Usenet or a website would also apply to TV and radio broadcasts. Possibly even to any form of publication.

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.

There is even some concern that current copyright law allows for works to be subsequently removed from the public domain (if they are still within their original copyright term).

Re:Hate to break it to them

[MartinG]

You said:

They absolutely need to agree to a license (not sign a contract) to use the software.

The GNU GPL says:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted

So you do NOT need to agree to ANYTHING to USE the software. The GNU GPL (as with any other copyright license actually, despite what some would have you believe) applies to copying, distribution and modification only.

Re:Hate to break it to them

[NickFortune]

I'm not sure they need a contract.

As I understand US law, a licence is contract. A specialised form of contract, but a contract nevertheless.

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

That's not how the GPL licence works:

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

See? I might give you a copy of someone else's GPLed work, but I'm not relicencing to you. All I'm doing is distributing it, in accordance with the rights grated me under the GPL. However if you want to actually use it, to say nothing of modify and distribute, for that you need to accept the licence offered by the copyright holder - in this case the GPL.

Now if you want to take out a support contract with me, that's fine and I'll take your money. However all you're buying is support. I'm not re-licencing the software because I don't have that right, neither under the GPL, nor under copyright law. The copyright remains with the holder, and since the licence is a separate agreement, it remains between you and the copyright holder.

Hope that helps.

Re:Hate to break it to them

[aug24]

No, no, no, no .

A license is not a contract. In fact, unless an agreement has both give and take, and agreement from both parties, it isn't a contract: if I say "You may walk on my lawn, but only if you wear flat-soled shoes", I do not have a contract with you. I have given you a license with conditions.

A license is a one-way permission, perhaps with conditions. If you do not stay within the GP License, then you have to explain what rights you had to reproduce the work; if you wear your hiking boots on my lawn, I want to know what right you had to go on my property!

Justin.

Re:Hate to break it to them

[ajs318]

Yes, but nothing stops you using software as long as it was acquired legitimately. It's true that you have to make a copy of it in the computer's memory in order to use it, but making that copy is considered "fair dealing" -- meaning, the law of the land does not forbid it.

Re:Hate to break it to them

[QuantumG]

Oh, BTW, the GPL Violations Project has won every case they have won because the other side didn't even turn up. They could have presented the case that distributing Linux without source was against the 10 commandments and they would have won. It's called a "default". What's especially funny about this guy is that the code he has written for the Linux kernel is in a tiny part of the core that you could easily remove and rewrite. That's actually one of the great things about the Linux kernel, because it has so many authors, you can always just remove the code that the person who is suing you has written, then go to court and say "huh? we removed this guy's code already" and the judge will throw it out. Then the next guy comes along to sue you and you do it again. Unless Linus or Alan Cox pony up a lawyer, you're fine.

Re:Hate to break it to them

[orcrist]

Yay!! My first troll mod. Let's go for offtopic! I have karma to BURN baby.

Re:Hate to break it to them

[ajs318]

There is even some concern that current copyright law allows for works to be subsequently removed from the public domain (if they are still within their original copyright term).

I think we need a new law establishing that once a Work has entered the Public Domain -- whether by explicit request of the author, the passage of time or as the result of a court order -- then all Derivative Works based on that Work are also in the Public Domain, and therefore uncopyrightable. (And there would be no need then for the GPL: the Public Domain would be afforded equivalent protection against unwanted proprietary Derivative Works by the Law of the Land.)

In practice, once a Work has entered the Public Domain, under the present system anyone is entitled to create a Derivative Work and will then own the copyright on that Derivative Work. So while a Work remains in the Public Domain (and if a law extending copyright comes in one day too late to protect a Work, the Original Work still enters the Public Domain -- mumble mumble Bill of Attainder or ex post facto Law mumble mumble) anyone can make a Derivative Work and will automatically own the copyright thereupon. If a Work is dedicated to the Public Domain by some deliberate act, then withdrawn from the Public Domain by the former copyright holder, anyone who had made a Derivative Work while the Work was in the Public Domain would still legally own the copyright on their Derivative Work. In order to prove that a copyright violation had taken place, you would have to prove that the Derivative Work was made while the Original Work was still subject to copyright (mumble mumble act or omission which did not constitute a penal offence mumble mumble time when it was committed mumble mumble). It shouldn't be hard to convince a jury that there is Reasonable Doubt as to whether the work in question was in fact subject to copyright when the Derivative Work was made.

Re:Hate to break it to them

[ratboy666]

A log of people are going to jump on you about needing to accept the GPL.

Copyright doesn't give "fair use rights". Copyright grants NOTHING of the sort to the "user". At least not in my jurisdiction (Canada) and I really don't think so in the USA either.

Copyright RESERVES the right to copy to the copyright holder. And (very important) produce derivative works.

You can use the thing in whatever way you want, as long as that doesn't involve copying. That would include the ability to sell the thing, etc.

Some copyright holders have been working to get "rent" out of the things you can do.

Ratboy

Re:Hate to break it to them

[leuk_he]

...COPYING, DISTRIBUTION AND MODIFICATION. ...

However i am not sure about the part of "11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, " fall under the header of COPYING, DISTRIBUTION AND MODIFICATION.

and point 12 also.

If you run the program you still have no warranty by the gpl license(but support can be provided under a different contract). I think that still is very clear to everyone.

Re:Hate to break it to them

[mav[LAG]]

As I understand US law, a licence is contract. A specialised form of contract, but a contract nevertheless.

Wrong. A license in US law is just permission to do something you wouldn't normally otherwise be allowed to do under law. If you break the terms of the license, you will be asked to stop what you are doing otherwise you face prosecution under some other statute. If you ignore the terms of a fishing license for example you will be asked to stop otherwise you could face trespassing charges.

Similarly if you ignore the terms of the GPL, you will be asked to stop what you are doing or else go to court for copyright violation. You don't have any permission to copy, modify and distribute others' copyrighted works in the first place. The GPL gives you that permission but there are no pre-arranged terms, no promises of goods or services delivered for money paid and no penalties for violation since its not a contract. You might be thinking of the common-or-garden EULA which mixes contractual obligations in with copyright notices.

Re:Hate to break it to them

[NickFortune]

The GPL gives you that permission but there are no pre-arranged terms, no promises of goods or services delivered for money paid and no penalties for violation since its not a contract.

But surely the terms of the GPL are pre-arranged terms, at least in so far as they exist prior to acceptance of the agreement? The goods or services delivered are the rigths granted by the GPL. There's no money changing hands, but I was under the impression that money wasn't a necessary component of a valid contract. The key concept is consideration and that's covered by the rights granted under the licence.

Just what I've picked up lurking on Groklaw, so I may have the wrong end of the stick

Re:Hate to break it to them

[Dcnjoe60]

Using their argument, which you cited (Graham v James), would also imply that every newspaper and magazine that is published or sold, through a public venue, or nonexclusively, would also waive their right to sue for copyright infringement. Haven't they have granted a nonexclusive license - anyone can read the paper, particularly if I leave it on the train? And, if so, doesn't that make their content now open for use?

Re:Hate to break it to them

[MartinG]

Yes, I agree. Actually, its slightly different depending where you live. Under UK law for example (where I live) making what is called a "transient copy" like one in a computers memory is explicitly excluded from the law. So you don't need a licence.

Re:Hate to break it to them

[ajs]

The case is entirely bogus, but they're going to base it, I presume, on the concept (and pardon me for not recalling the legal term) that leading someone to believe that your software is free (as in really free) for the taking implies that you are waiving your rights to that software. That would presumably come down to a question of how the licensing was portrayed. Were the authors clear that this software was placed under the GPL? Were the people using it made aware of that fact? Was there a paper trail kept documenting that fact?

Simply shipping a copy of the COPYING file with your code doesn't really fulfill all of your obligations as licensor. You really need to make users aware of the terms under which the license the software.

Then again, I'm not a lawyer, and I'm just reciting from my poor memory the concepts that have been given to me.

Re:Hate to break it to them

[Fastolfe]

The key concept is consideration and that's covered by the rights granted under the licence.

Consideration must go both ways. Both sides must "get" something out of the agreement and/or be required to "do" something as part of the agreement for it to be a contract.

Re:Hate to break it to them

[Fastolfe]

then all Derivative Works based on that Work are also in the Public Domain, and therefore uncopyrightable.

This sort of defeats the purpose of copyright, doesn't it? The idea is to allow content producers to have exclusive rights, thus allowing artists to safely exercise their creativity and produce new things. If you prevent them from being able to have these protections for things they've produced that happen to include things that are in the public domain, they simply won't do it, and we lose out on those types of works. What is the point of putting something into the public domain if people have a disincentive to use it?

Re:Hate to break it to them

[tinkerghost]

They haven't granted any non-exclusive right to publish or distribute the paper. They control the printing. Right of first sale allows people to resell or give away the paper they already bought. Copyright only governs the actual creation of new copies, not distribution of those copies following legal purchase.

Re:Hate to break it to them

[drakaan]

That was, indeed, a typo... s/use/redistribute/

Re:Hate to break it to them

[Xenographic]

> They absolutely need to agree to a license (not sign a contract) to use the software.

No! With the GPL, they need the license to *distribute* the software. Not merely to use it.
Guess you didn't read the preamble where it explains this :]

Re:Hate to break it to them

[mrchaotica]

They absolutely need to agree to a license (not sign a contract) to use the software.

Wrong, wrong, wrong, wrong, wrong! They absolutely need to agree to a license (i.e. the GPL) to distribute the software. Nobody ever has to agree to anything whatsoever to merely use GPL software.

Re:Hate to break it to them

[triskaidekaphile]

Disney would never make another movie.

Now name a Disney movie and the public domain story they co-opted to make it!

Re:Hate to break it to them

[mrchaotica]

First of all, IANAL. That aside, I have read about this stuff, so I think I can write reasonably intelligently about it.

Does the act of getting it in the first place (such as by downloading) constitute distribution...?

IANAL, but no -- which is why the RIAA et al. tends to go after people who make available files on P2P, rather than ones who only leech.

[O]r does the term only refer to "outbound" situations when I then pass it to someone else?

Correct, especially since the GPL is explicitly (i.e, the FSF says so) only a distribution license. Other licenses (i.e. so-called "EULAs") claim differently, which is the reason they're widely regarded as not being enforcable (due to the Doctrine of First Sale). In other words, the GPL is enforcable while other software licenses are not specifically because it's a distribution license rather than an "end use" license.*

*(Technically, the reason EULAs are unenforcable is that they try to remove your rights retroactively, without "consideration." In other words, you already have the software without having agreed to it, so doing so benefits only them. In contrast, the GPL adds rights that you did not have previously, which is okay because it constitutes "consideration.")

Re:Hate to break it to them

[civilizedINTENSITY]

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

You quote this, then go on to add, "However if you want to actually use it, to say nothing of modify and distribute, for that you need to accept the licence offered by the copyright holder - in this case the GPL." It seems you just magicly add the word "use" as though "of course that must almost be covered" without any support.

Re:Hate to break it to them

[NickFortune]

You quote this, then go on to add, "However if you want to actually use it, to say nothing of modify and distribute, for that you need to accept the licence offered by the copyright holder - in this case the GPL." It seems you just magicly add the word "use" as though "of course that must almost be covered" without any support.

Fair enough. Again, from the GPL:

Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted

So, as you see, the GPL specifically grants the right to run the program. That doesn't mean that you wouldn't have the right to run a GPLed work without that specific grant, but I believe most copyright lawyers equate the right to run a program with performance rights for other creative works, which would mean permission was required. I can't support that at all - it's purely an impression formed, so you'll need a qualified legal opinion if you want an authoritative answer. However I think it's safe to say that the reason modification and distribution are emphasised is that it's possible to tell when someone distributes a program, but generally rather harder if they just run it.

Was there a follow on point you wished to make? I didn't think my argument really depended upon the right to run a program being conveyed by the GPL

Re:Hate to break it to them

[DragonWriter]

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.

No, not following the terms of a contract doesn't mean that you don't have the contract, it means you are breaking it. This is, at least the weight of authority seems to be, true even for gratuitous copyright licenses (which otherwise might fail as contracts generally for want of mutual consideration.)

Of course, since the GPL is phrased as an offer that must be accepted without specifying a method of acceptance, its an interesting question whether someone who silently redistributes GPL software without following the requirements of the GPL has "accepted" the license, forming a contract, and then broken it, or is simply violating copyright. I don't know that there is direct authority on point, but the apparent tendency to find contract even in gratuitous nonexclusive copyright licenses and in various other areas (for instance, the UCC approach of viewing shipment of nonconforming goods in response to an order as both acceptance, forming contract, and breach of that contract), combined with the ambiguity in acceptance of the GPL and the tendency to construe ambiguities against the party with the greater control over the contract terms, all seem to weigh in favor of finding that the appropriate remedy is for breach of contract not for copyright violation.

Re:Hate to break it to them

[DragonWriter]

Copyright doesn't give "fair use rights".

Yes, US copyright law does, in fact, give fair use rights, see 17 USC 107.

At least not in my jurisdiction (Canada) and I really don't think so in the USA either.

You may be correct about Canada, but US law is different.

Re:Hate to break it to them

[WolfWithoutAClause]

No, it's somewhat a grey area, it's going to depend on what they did and how far outside the terms of the contract they go; but there's legislation pushing it towards copyright infringement in most cases.

In practice the court has decide whether it is a small breach of contract or a large breach of contract. In the Microsoft vs Sun case the court ruled that it was a bit arguable- different parts of the license said different things, so they bounced it back to the original court and called it contract infringement rather than copyright. In a different case it would have been a major breach of contract, and then for all intents and purposes the contract is irrelevant, they would have been nowhere near meeting it, so they're acting as if the contract doesn't exist, and copyright law would come down on them like the wrath of God.

In this case they've just completely ignored major terms of the contract; they'll try and make it look like it's the same as the Microsoft/Sun, but I doubt they'll manage it.

Re:Hate to break it to them

[DragonWriter]

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.

No, you have breach of contract. The mere act of granting a license covering certain of the rights protected by copyright is a waiver of the right to sue the licensee for violations of those rights under copyright law; the licensor's remedies are restricted to those for breach of contract until and unless the license is legally terminated by the licensor. Breach does not generally terminate the license (and certainly does not terminate it retroactively), though it may allow the licensor to cancel the contract, and certainly allows the licensor to seek remedies for the breach of the contract.

Re:Hate to break it to them

[DragonWriter]

Using their argument, which you cited (Graham v James), would also imply that every newspaper and magazine that is published or sold, through a public venue, or nonexclusively, would also waive their right to sue for copyright infringement.

Nope. Graham v. Jones only holds that the rights under copyright which are the subject of the license cannot be the basis for a copyright suit based on breaches while the license was in effect. (The "nonexclusive" is only important because Graham v. Jones was applying reasoning that had already been applied to exclusive licenses, not because the principal was being restricted to "nonexclusive" licenses.)

That is, if I grant you a copyright license that allows you to redistribute my copyrighted work with certain restrictions, and you redistribute it but don't follow my restrictions, I am limited to seeking remedies for breach of contract, I can't seek remedies under copyright law.

Of course, certain kinds of breach may enable me to cancel the license, and then I may proceed against you with copyright claims for subsequent violations.

Similarly, if I enter into an agreement which allows you to redistribute my work unchanged under restrictive terms, but with no permission to make or distribute derivative works, I can still pursue a copyright claim against you for making and distributing derivative works, since you had no license for those at all.

Re:Hate to break it to them

[epee1221]

I suspect either misinterpretation of what is meant or quote mining, either by you or by the defendants' lawyers. The referenced case says, "A copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement." By your interpretation, I cannot be sued for copyright infringement if I start handing out disks with copies of [insert proprietary app here] on them because I was granted a nonexclusive license to use that app; the copyright holder would have waived his right to sue me by granting such a license.
It turns out that the quote in question references a 1997 case, which says that the licensor waives the right to sue for copyright infringement, not in all situations, but only those which are allowed by the license.

In so saying, we do not suggest that Albion and JMI waived their rights to be compensated by the Miracle in accordance with their oral understanding. What they waived was any right to sue for breach of copyright on account of the playing of the song while the license was in effect.

(emphasis mine)

Further discussion in JMI v Veeck declares that the offense alleged by JMI would be breach of contract, not copyright infringement, because of the defendant's failure to provide consideration as specified in the oral agreement. This definition of "breach of contract" seems inapplicable to the Artistic License (it's more similar to the BSD license than it is to the GPL) since all it seems to do is (explicitly) waive the right to sue in certain situations; perhaps the limitations placed on redistribution could be considered consideration.

Re:Hate to break it to them

[ajs318]

The idea is to allow content producers to have exclusive rights, thus allowing artists to safely exercise their creativity and produce new things.

Yes -- the important bit being to create new things, not just endlessly recycle existing things.

What is the point of putting something into the public domain if people have a disincentive to use it?

The public domain is for everyone, not just "content producers".

The original stated purpose of copyright was to encourage contributions to the public domain. It may well be that there is now a better way of doing that; and if so, copyright must be abandoned in favour of that better method.

Re:Hate to break it to them

[Arnoud Engelfriet]

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. Ehm, no. If you breach the license/contract, you are in breach of contract and you need to fix that. That doesn't automatically terminate the contract (unless the contract says it does).

(Bad) analogy: we agree that I'll buy your car and I'll pay you $2,000 in consideration. I drive off, but do not pay you. Now you can sue me for nonpayment, but the car's still mine. It's not suddenly a theft because I didn't pay. You only have a contract claim (lack of payment) against me. That's the legal theory.

In this situation, the licensor grants permission to copy, modify and distribute, and the licensee accepts certain obligations in return. So, following the same theory: if the licensee fails to do his part, the permission is not withdrawn but the licensor must sue to make the licensee live up to his part.

Most countries have provisions in their laws that essentially state "if one party fails to perform his obligations under a contract, the other party can delay his performance until the first party comes into compliance again." This is to address exactly this situation. Without such provisions, your phone company could indeed stop giving service yet demand payment. I am not sure if a provision like that would apply to a license agreement, since the licensor is not performing at the time the licensee went into noncompliance.

Arnoud

Re:Hate to break it to them

[drakaan]

For everyone who has made the comment that began this "Wrong! Wrong! Wrong!" subthread, scroll up to my "Yes it was a typo" response.

s/use/distribute or modify/g; reparse();

I do understand and appreciate the distinction between use and distribution, but sometimes I type carelessly. Trying to grok the thought process of the poster I was replying to helped me to not pay enough attention to that particular phrase. The whole contract/license/support jumble had my head a bit foggy from trying to detangle it.

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.

Re:It's not being given away for free

[dhasenan]

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

[MostAwesomeDude]

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."

Re:It's not being given away for free

[TapeCutter]

"Um, no."

Um, yes.

"If you don't follow these rules, you can't give it to others."

Regardless of what the "rules" actually say, how is your muddled post different to what the GP said?

Re:It's not being given away for free

[AusIV]

What are you talking about? Grandparent said "It's being given away with conditions. The condition is that you obey the licensing agreement." What you just said is a little bit more specific as to what the license says, but it's almost the exact same thing the grandparent said, but you start out like you're disagreeing with them.

Re:It's not being given away for free

[mollymoo]

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."

It's not under the GPL. It's under the Artistic License. IANAL, but the argument seems to be that the right to recognition is not protected by copyright and as the license waives all the rights copyright does confer without expectation of compensation there has been no infringement. From TFMTD:

It is even clearer that Jacobsen's unjust enrichment claim is preempted by the Copyright law. The Ninth Circuit has held that unjust enrichment claims are equivalent to claims for copyright infringement and thus preempted because such a claim lacks an extra element, namely the bilateral expectation of compensation.

The GPL expects 'balateral compensation' (reciprocal sharing of source code), so even if they lose this case I don't think the decision would apply to the GPL. It probably would apply to BSD though. My guess at the counter-argument would be that recognition constitutes compensation. Again, IANAL.

Re:It's not being given away for free

[shawb]

It's different because the OP was saying that it is given away with the restrictions. One does not need to agree to the GPL to USE GPLed software. You only need to agree to the terms if you wish to distribute GPLed material. It's a matter of semantics, but this wouldn't be Slashdot without people arguing over semantics.

Re:It's not being given away for free

[Technician]

Some examples that come to mind are Adobe Acrobat Reader, Apple Quicktime player, Apple I-tunes, Microsoft Internet Explorer version 3.0 (unbundled from Windows 95 given away free), anything on an AOL CD,.....

It is not just Free OSS software that is at risk.

Re:It's not being given away for free

[TapeCutter]

No, the OP said the software is given away under a license who's terms must be obeyed, one of the license terms GRANTS you permission for unrestricted USE. If someone has given it to you without the license then they are breaking the terms of the license.

Semantics does not come into it, however comprehension and clear communication does.

Re:It's not being given away for free

[epee1221]

but the argument seems to be that the right to recognition is not protected by copyright and as the license waives all the rights copyright does confer without expectation of compensation there has been no infringement.

I don't see any part of the Artistic License that "waives all the rights" conferred by copyright. There are parts that allow certain things which would be a violation of the licensor's copyright, but I can name some copyright violations not allowed by the license.

The "right to recognition" isn't in there exactly as you say it, but if the copyright notice is removed, the package has been changed and cannot be redistributed without either including the "standard version" of the package, which would include the copyright notice, or including a description of the changes made ("removed John Doe's copyright notice and replaced with my own").
No, there is no requirement that changed/redistributed versions must point out the copyright owner, but if copyright notices are in the standard version of the package, then there is no way to redistribute versions of the package without them.

The "unjust enrichment" claim relates to the defendants' use of the package as a tax write-off.

Re:It's not being given away for free

[jtev]

No it doesn't. You don't need a licence to use software, only to distribute it. Sorry, you fail.

Re:It's not being given away for free

[shawb]

You're right... clear communication needs to come into it. My previous post was clarifying what I thought the grandparent was saying, not the actual terms of the GPL. There is a difference between what the OP said and the post you originally replied to... but I was making no attempt to clarify which one is accurate. And I was posting really tired so it didn't come out as clear as I thought it did.

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.

Re:Promotional CDs

[i_should_be_working]

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

Re:Promotional CDs

[qbwiz]

Just make sure you give the source along with.

Re:Promotional CDs

[pegr]

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

[MightyYar]

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

[Al Dimond]

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

[despisethesun]

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

[MightyYar]

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.

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.

Re:What part of the copyright act requires money?

[QuantumG]

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

Re:What part of the copyright act requires money?

[symbolic]

I don't even think this applies- how often do you buy software that gives you an exclusive license?

Re:What part of the copyright act requires money?

[pjr.cc]

Its not to do with money, you cant modify a copyrighted work without the authors permission. Nor are you allowed to remove their copyright notices either.

Re:What part of the copyright act requires money?

[QuantumG]

You're obviously confusing the two uses of the word "exclusive". We're not talking about an "I'll only license it to you, I promise" license, we're talking about a "you may redistribute this to others" license. Which, again, would be obvious, if you would READ THE ARTICLE.

Re:What part of the copyright act requires money?

[Myopic]

limited time? you must be new to slashdot copyright discussions.

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!

Should be open and shut case.

[matts-reign]

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.

[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.

[tap]

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.

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.

Re:Should be open and shut case.

[dgatwood]

Sounds like USL v Berkeley all over again....

Re:Should be open and shut case.

[Jah-Wren Ryel]

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.

I used to think that a career change from software developer to lawyer would be a fairly easy and natural progression. After all both professions are all about understanding the rules and figuring out the more optimal paths that both follow the rules and produce the desired result. It ought to be a cinch.

Except for one crucial difference.

In the software world each code path either works or is broken - there may be multiple paths that produce the same result, but their correctness is black and white. In the legal world, nothing is black and white. What "works" one day, may be broken the next day depending on who the observers are (judge, different lawyers, etc).

That kind of behavior is so totally effed up from an engineer's perspective that only an insane engineer could ever become a good lawyer. The law is really just a huge collective bong party - everybody toking up and then speculating out loud about their deepest philosophical insights into the universe. It all comes down to how well you can convince other people that the words of the law mean what you want them to mean and not what someone else wants them to mean.

People all laughed when Clinton (a lawyer, like most politicians) made that statement about "it depends on what the meaning of the word 'is' is" But given the context that the law is all about arguing over the meaning of words, it is perfectly natural that he would say that. Still totally effed up, but in a perfectly natural way.

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.

Re:Should be open and shut case.

[Hotawa Hawk-eye]

Does anybody from a model railroading magazine or website have an "evaluation" copy of the software Katzer is billing as his own that you received to review for an article?

Re:Should be open and shut case.

[themindfantastic]

and yet, they are not doing too well... belief in the law like some honourable idealized system, just proves who is naive. Corp lawyers and PR people are becoming the new whirling dervishes, able to spin anything to achieve their ends, and if it isn't subject to simple spin/doubletalk, political favors and mutual backscratching can change that...

Re:Should be open and shut case.

[James McGuigan]

Sounds alot like Sophism to me

From http://en.wikipedia.org/wiki/Sophist
"The essential claim of sophistry is that the actual logical validity of an argument is irrelevant (if not non-existent); it is only the ruling of the audience which ultimately determines whether a conclusion is considered "true" or not. By appealing to the prejudices and emotions of the judges, one can garner favorable treatment for one's side of the argument and cause a factually false position to be ruled true."

Re:Should be open and shut case.

[Marlow the Irelander]

The difference from this case, though, is that you aren't ever allowed to redistribute those things. The basic argument in this case isn't that the software was free, but that the violators had a license to redistribute it (the GPL). They argue that since they had this license, they don't breach copyright; at worst, they failed to adhere to the correct terms of the contract (i.e. can be sued for breach of contract, not prosecuted for a copyright violation).

Of course, the counter-argument is that upon breaching those terms the license was revoked, but meh.

Naked woman on the roof!

[BadAnalogyGuy]

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!

[nick.ian.k]

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!

[Anonymous Coward]

Boy do you sure live up to your nick.

Re:Naked woman on the roof!

[ivan256]

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.

Re:Naked woman on the roof!

[sd_diamond]

So what will be the defense's argument if it's not an all-male jury?

Re:Naked woman on the roof!

[TapeCutter]

Yes, but this does not give potential bead tossers the right to modify the free balcony boobs with silicon.

Re:Naked woman on the roof!

[MS-06FZ]

modify the free balcony boobs with silicon.

...Sounds painful...

Re:Naked woman on the roof!

[BadAnalogyGuy]

I'd love that people emulated me.

Imagine! BadAnalogyGuy: the role model

I'm all choked up.

Re:Naked woman on the roof!

[ivan256]

I've been pondering the architecture already. Clearly it would have to key of a random sentence subject in the article summary. That can map to a database of tangentially related concepts. The hard part would be making sure that the analogy was truly bad. It would be a total giveaway if the script happened to generate an apt analogy.

I'm truly beginning to appreciate the amount of work required in the service you provide to the slashdot community.

Re:FRIST PSOT

[Anonymous Coward]

btw, FOSS blows donkey chunks.

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

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:That won't fly in court

[SirSlud]

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

[scott_karana]

Either a last resort, or the malevolent use of a previously unknown loophole in American law.

Re:That won't fly in court

[Anonymous Coward]

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

Re:That won't fly in court

[TheDreadSlashdotterD]

If the defense does work, this could completely legalize AMVs. Ultimate GW tribute, here I come!!!

Re:That won't fly in court

[pegr]

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

[cheater512]

Well then he paid for it and has the right to edit it and sell it as his own. :)

Re:That won't fly in court

[Mr. Underbridge]

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

Not in the US you don't, not for over the air anyway. Over the air broadcast is not government subsidized as it is for instance in the UK.

Re:That won't fly in court

[SpaceLifeForm]

Mod parent up. This is exactly in line with the
BS happening on other fronts: SCO v IBM, SCO v Novell, etc
and the new Microsoft-Novell FUD agreement.

Even though it should not fly, the legal fees will
be interesting during appeals.

Re:That won't fly in court

[tinkerghost]

The argument isn't about it's free it's about everyone is allowed to distribute under license, I'm just breaking my license.
They aren't saying that just because something is broadcast or presented for free, it's not covered under copyright. They are saying if everyone has a right to reproduce under a blanket license, then failing to live up to the license terms is a contract violation not copyright.
If Starwars was available with a license that said "make copies & give them to your friends but don't change anything", then changing things would be breach of contract not copyright infringement. The contract is:

• My concideration: You may copy my work & distribute it.
• Your concideration: I will not make any changes.

That satisfies the mutual exchange of conciderations required for a valid contract. If you make changes, you are breaking your contract, but that doesn't make the contract any less valid.

Read the brief they filed - he *may* be right

[Anonymous Coward]

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

[BadAnalogyGuy]

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

[MightyYar]

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

[Fulcrum of Evil]

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

[epee1221]

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

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

[cpt kangarooski]

Not quite.

Federal courts are perfectly able to decide matters of state law, and in fact do so all the time.

Anyway, federal copyright law includes a provision that preempts state copyright law. The idea is that this way there is only one system of copyright law in the US, rather than parallel state and federal systems, where the state systems might differ amongst themselves. Remember that the federal government lacks inherent powers and instead is given powers from the states and the people. The states had copyright laws before the current government even existed, but it was one of those sorts of things that they tended to do a poor job with, which is why the federal government, when it was created, was given some more authoritative power there too. Even so, there was still significant state copyright law in operation until the 1976 Act, and there's still some even today. However, in an attempt to clean things up, the preemption statute was put into place. Basically, if a state has a law that is the equivalent to copyright, the federal law makes it non-operative. Of course, states can still have laws that are sufficiently different from the federal scheme to remain active, even if they're basically copyright laws.

Here, the plaintiff is making some state law claims, and the defendant is saying that they fall under the preemption statute and are void. They may be right, though I'd have to see exactly what's being claimed. However, the federal copyright claims can't be dispensed with so easily.

In order to attack those, he's saying that the plaintiff copyright holder has a valid copyright but has given permission to the world to engage in the behavior that the defendant is accused of. This is possible, though it's either the same or nearly the same as putting the work in the public domain. And if the work was merely GPLed (and not also or alternatively placed under some license that does what defendant says) then I don't see it being a winning argument. Still, you have to argue the case you've got, not the case you wish you had. As with most legal disputes, this'll probably just end up settling.

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

[LurkerXXX]

No, it's a violation of a contract case.

The scare part (IANAL) is I think in contract disputes, it might be the case that the penalty depends on monetary loses caused by the breaking of it. In the case of free software that would be...

The lawyers are gonna have a fun time.

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

[Guppy06]

"Federal courts are perfectly able to decide matters of state law, and in fact do so all the time."

"Remember that the federal government lacks inherent powers and instead is given powers from the states and the people."

So... um... how do federal courts get to touch on state law "all the time?" Unless we're talking about things like "controversies between citizens of different states," I'm not seeing how that happens.

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

[MightyYar]

You are SO the man - this is the second time you have responded informatively to one of my posts :)

I wasn't really confused about the federal jurisdiction part, though. What confused me was that they seemed to be saying, "Federal copyright law overrides the state copyright law in this case and therefore this court does not have jurisdiction." I'm okay so far, but then they seem to argue, "This case is not a copyright case, it is a contract dispute." THAT is where I'm confused. Did they not just use the fact that it is a copyright case to argue that it is a federal matter? Why are they then making another argument that relies on it not being a copyright case? If the court were to agree that it was a contract dispute, wouldn't that negate the argument that it does not belong in a state court?

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

[cpt kangarooski]

Actually, with only some minor exceptions as to certain bodies of law, or certain limited-jurisdiction courts, all courts get to deal with foreign law.

For example, let's say you are arrested in your state, by your local police, and they make some kind of terrible procedural error. You'll end up in a county court, most likely, which is a court created by your state, but you can make an argument based on the federal constitution. The court will consider this law, which is foreign to it in that it's a state court, not a federal court, and can interpret it, and rule accordingly.

A state court can not only deal with federal law, but it can also interpret the law of other states in making its decisions in a case that demands it. And likewise, federal courts that need to consider matters of state law are able to do so. In some cases, these courts can even interpret the laws of foreign countries. Naturally, a court that makes an interpretation of foreign law can't issue an opinion that's binding on the foreign courts (e.g. a state court can't bind a federal court on federal law, just as a federal court can't bind a state on state law), but it is binding on any courts below the one issuing the opinion, and can still influence the foreign court if it's a particularly good interpretation.

One way to get to federal court is through diversity, as you noted. The idea there is that the federal court, not beholden to any state, will be fairer than a state court would where one party is a native and the other party from outside that state. Another way is to have an issue of federal law at stake. For most such issues, there is concurrent jurisdiction; a federal claim could be made just as easily in state court as in federal court, and it's up to the plaintiff to get to pick.

But in this case, Congress made a law (28 USC 1338) that says that the federal courts have exclusive jurisdiction in copyright cases. This means that if a case is a copyright case, no state court can hear it at all. (Of course not all cases that involve a copyright at all are actually copyright cases; many are really contract cases where the copyright could just as easily be a microwave, since it's just the thing being fought over) This is because Congress doesn't want states to have much of an effect on copyright policy. And since our judicial systems also have a rule of res judicata, a plaintiff can't split his claims; he has to sue the defendant for everything he can as to the complained of factual scenario, or else he loses the claims he didn't bring. So the federal court has to hear the state claims or else the defendant would have to choose between a copyright suit or a state law suit and couldn't bring both. This is the only fair way to do it.

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

[cpt kangarooski]

No, what they appear to be saying is that the court does have jurisdiction, but that the state law claims are preempted. Jurisdiction is a matter of which court can hear a claim. The preemption issue has nothing to do with jurisdiction, but is instead saying that the claims are void because federal law controls, and federal law says that they are void. That decision is a matter of copyright law, and so the jurisdiction does have to be in federal court. Then the defendants are saying that the federal court does have jurisdiction to decide the other matter, partly because it's something of a copyright matter (dealing with copyright licensing) and partly because the earlier issue forces everything here to be decided in federal court, even if some of it is arguably state law.

Basically your understanding of events (i.e. 'this case is...') was wrong.

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

[Guppy06]

Thanks for clarifying, in your original post it seemed that you were saying that a federal court could hear a matter of state law at whim. However, I'm left with one bit of nit-picking from the example you used:

"You'll end up in a county court, most likely, which is a court created by your state, but you can make an argument based on the federal constitution."

That seems to be covered by the Supremacy Clause and/or the way (I assume) all state constitutions copy the Supremacy Clause verbatim.

"A state court can not only deal with federal law, but it can also interpret the law of other states in making its decisions in a case that demands it."

Full Faith and Credit?

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

[Fulcrum of Evil]

In that case, Id argue (not being a lawyer) that the appropriate loss would be what they'd have to pay to have that writtne or license the code, since they had no legal right to the code.

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

[alienw]

IT'S NOT THE GPL, YOU RETARDS. It's the artistic license. This is precisely the reason you don't use random, unproven licenses like this one. If you look at the artistic license, it was not written by a lawyer. In fact, it barely even constitutes a legal agreement, and is far less restrictive than the GPL. It pretty much allows taking open-source code and incorporating it into commercial software. Here is one relevant quote:

4. You may distribute the programs of this Package in object code or executable form, provided that you do at least ONE of the following:

        a) distribute a Standard Version of the executables and library files, together with instructions (in the manual page or equivalent) on where to get the Standard Version.

My interpretation is that as long as you provide a link to the author's web page somewhere on your site, you are golden.

However, you may distribute this Package in aggregate with other (possibly commercial) programs as part of a larger (possibly commercial) software distribution provided that you do not advertise this Package as a product of your own.

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.

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

[cpt kangarooski]

That seems to be covered by the Supremacy Clause

Not really. I was thinking of the situation where the police screw up in such a way that you have a defense under the federal 4th, 5th, or 6th Amendments, which are largely binding on the states not due to the Supremecy Clause, but due to the federal 14th Amendment's Incorporation Doctrine. The state courts are perfectly capable of interpreting these laws, but the supreme interpreter of federal law is the federal Supreme Court, in just the same way that the supreme interpreter of a state's law is that state's Supreme Court. (Which is why in a purely state law case, without any applicable federal law of any kind, you cannot appeal from a state Supreme Court to the federal Supreme Court; the latter won't even bother to hear the case) So the state courts deciding matters of federal law will defer to what the federal courts have said, but you're still going to be in the state system unless you have to appeal on the federal question from the state Supreme Court to the federal Supreme Court.

Full Faith and Credit?

Well, that plays a role, but that's not the source of it. Remember that states don't get power from the federal Constitution; they gave some up in it. And states aren't limited governments like the federal government is; they're plenary governments. Basically choosing which law to apply in a given case, with an option being some kind of law foreign to the court, is something that courts have had to do since the Romans, if not before. This is often because events might occur under the foreign law, or the foreign law otherwise applies for some reason, but it's the local court that has jurisdiction and that has had the case come before it, so it's generally stuck with it.

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

[alienw]

My interpretation is that you need to distribute the instructions with the executables. My guess is that this is the source of the violation.

Can you really tell a judge with a straight face that this violation has caused you actual monetary damages?

As for incorporating it into a commercial program, the context is important:

No, it isn't. A contract must have precise, unambiguous definitions and requirements. That is why contracts are rarely written in plain English. Otherwise, a simple contract dispute turns into an uncertain who-has-the-more-expensive-lawyer game. This is what has happened here. The license is not easily enforceable because it is extremely ambiguous.

Get the devil to help

[sqlrob]

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...)

Re:Get the devil to help

[Tim C]

The demos I'll grant you, but the rest wouldn't apply as it's not the copyright holders (or appointed representatives) that are performing the distribution.

That said, copyright not applying simply because you don't charge money for something is one of the most ridiculous things I've heard in a long time.

Re:Get the devil to help

[sqlrob]

Yes it does apply. Most movies have an official site. Music is available streaming from radio stations and places like Pandora. Various networks stream shows.

I recognize that I know nothing about this topic

[Anonymous Coward]

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

Copyright stance memo!

[chrispatch]

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

Re:Copyright stance memo!

[fossa]

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

Re:Copyright stance memo!

[wes33]

we're always for copyright ... copyright plus fair use

Re:Copyright stance memo!

[openright]

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!

[QuantumG]

Every day we're for freedom. Copyright is just a sword, you can wield it for good or you can wield it for bad. The vast majority of people wield it for their own personal richification at the expense of freedom, but the GPL doesn't.

Re:Copyright stance memo!

[babbling]

I'd rather copyright didn't exist than have copyright that lasts about 100 years.
I'd rather copyright that lasts 5 years than copyright not existing, though.

Short copyright periods are a good idea. Long copyright periods are a very bad idea.

A Big problem with this

[RobertLTux]

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....

[feranick]

(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....

Re:There is no such thing as "free" lunch....

[Incadenza]

...unless you are the lunch.

Doesn't matter.

[ScrewMaster]

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.

Re:Doesn't matter.

[DeadChobi]

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.

The copyright fallacy in a nutshell, finally!

[Weaselmancer]

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!

[Mr2001]

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!

[MikeBabcock]

No, the crowd who believes in Copyright believes in it as it was designed -- as a way to foster the creation of works with an end result of more public domain works (I'm not making that up either). No, Copyright wasn't established to make people money, it was established to encourage the creation of works, by giving authors a temporary revenue stream from their works.

That same crowd doesn't believe that the indexing of the contents of books and journals in any way harms that revenue stream or that ability to make money selling copies of the works, since Google offers no such copy.

In this case, a third party has taken your work, put his name on it, and sold it to people. In the Google case, they've borrowed your work, read through it, gave it back and told everyone else how to find a copy should they want it. Google is like the maven that tells you about the new book or tv show you haven't heard of yet, not the kid selling free newspapers.

Program in Question

[dantheman82]

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

Comment removed

[account_deleted]

Comment removed based on user account deletion

The guts of the claim

[tolomea]

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 it starts on page 13

Re:The guts of the claim

[james_gnz]

Your summary makes sense. However I don't think you've covered the stuff around page 12, which seems (to me) to be suggesting that it would not be possible to claim for damages even under contract law:

Under California law, a plaintiff is only entitled to recover under an unjust enrichment theory "if the circumstances must be such as to warrant the inference that it was the expectation of both parties during the time the services were rendered that the compensation should be made." Del Madera at 978 citing 1 B. Witkin, Summary of California Law, Contracts S 50, at 60-61 (8th ed. 1973 & Supp. 1984) (emphasis in original). Clearly as a provider of free open source software to the public (see Amended Complaint, N 2,41), Jacobsen never had an expectation of compensation from anyone, including KAM and Katzer.

I'm not sure what to make of this.

• Is it being claimed that non-monetary compensation is not a benefit,
• or that it is not a benefit specifically for the original author,
• or that the original author allowed a license to create derivitive works without claiming compensation at the time of providing the license, or necessarily believing they would receive a benefit unless a derivite work was actually made, so compensation was not claimed, or the benefit, if received, does not count as compensation for the license,
• or that the original author was not actually aware that they had granted a license (since the license was granted automatically), or was not aware of when their copyrighted material was being used to create a derivitive work, so did not have an expectation in this specific case per se,
• or is it simply being claimed that the license does not impose any restrictions on the use of the copyrighted work?

It all seems a bit vague. I guess it might be based on the idea "You didn't suffer any loss because I didn't take anything from you", but exactly this argument could be used against commercial copyright -- copying is not theft, you didn't suffer any loss of money, because it was my money in the first place. The 'loss' here is in comparision to how the situation would have been if the same use of copyright had occured legally -- i.e. it would have occured with monetary compensation or disclosure of source code.

One by one the dominoes fall...

[Aim Here]

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...

Cool!

[iamacat]

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

[Rinisari]

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.

Re:Established precedent in print journalism

[Jah-Wren Ryel]

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.

Unfortunately, just like any other analogy to physical (or more technically rivalrous) products, this one falls apart because only the first copy of the 'free' software cost anything significant to produce. All subsequent copies have close to zero marginal cost, and in this case even that marginal cost is borne by the defendant.

Re:Established precedent in print journalism

[ealex292]

Newspapers don't have zero marginal cost for later printings, but I suspect that the main cost is still for the first copy (reporters and editors versus programmers).

Re:Established precedent in print journalism

[Jah-Wren Ryel]

Newspapers don't have zero marginal cost for later printings, but I suspect that the main cost is still for the first copy (reporters and editors versus programmers).

And whether someone takes one or takes a hundred copies of a "free" paper has no impact on the cost of that first copy and since the copies themselves are "free" taking 100 of them only affects the paper's ability to recoup those "first copy costs" in a very roundabout and indirect fashion.

I Think That SCO Tried This

[Stephen Samuel]

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.

Re:I Think That SCO Tried This

[Stephen Samuel]

There's a GPL article with a quick summary of the reaction to SCO's claim that Copyright preempts the GPL. SCO later dropped the claim.

Now, if SCO drops a claim, then you know that it won't hold a mouthfull of pebbles, much less water.

Another example

[HomelessInLaJolla]

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 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 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.

Imagine if they lost

[Evil Pete]

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

[aussie_a]

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:Imagine if they lost

[aussie_a]

Don't forget the RIAA.

But I really want to forget them!

Giving something away for free removes copyright?

[TBBle]

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

[Anonymous Coward]

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.

Re:newclear power a problem for unprecedented evil

[NoMaster]

You write spam for a living, don't you?

It's an old argument

[Jeremi]

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

[RealGrouchy]

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>

Re:Summary title is misleading

[cheesygrapes]

The difference is that JMRI is constantly getting the **** beat out of them in court by this patent troll. They've already ran into many problems and lost lots of $'s.

Who they are

[loconet]

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

KAMIND Associates 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".

Re:Who they are

[Kuukai]

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".

And I would stay away from any "locally own small business owner". To, uh, owned for my tastes, presumably by themselves...

Re:Who they are

[MikeBabcock]

I too found the writing to need a severe overhaul. If this is the level of writing skill the author has, he or she really needs a paid writer. That and an HTML designer. Ouch.

Re:Who they are

[steveg]

This is the Microsoft party line. The only difference between "commercial" software and Open Source Software is that FOSS is given away for no charge.

Yes, they know better. But that's what they say in public.

Artistic License

[mitchskin]

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).

Take that analogy a step further

[hellfire]

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

[Mr2001]

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?

Re:Take that analogy a step further

[TheLink]

You _could_ be breaking:

11) Thou shalt not be an asshole.

Depends on the situation of course. ;)

you'd think, but...

[SuperBanana]

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.

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:you'd think, but...

[johntonsoup]

What did the fingers say to the face? SLAPP! He's Matt Katzer, b.

Seriously though, these kinds of legal situations didn't come about by pure chance. Part of the reason big venture capital firms have all-star attorneys is that they want to create a certain legal expense bar under which no one can sue them (or companies they own). If the public knows that they're going to have to spend at least $150k to sue a company, and their claim is less than that, very few lawyers will pick up the case unless it is almost certain to result in a decisive victory. So they pay 15 attorney's half a million a year, and they save themselves the vast majority of lawsuits against them.

All I can say is give the lawyers a break. Part of their job is to deter lawsuits. They argue a position and a judge determines if it is valid. By the nature of their jobs, they must be given the ability to argue a viewpoint. That said, we can get rid of lawyers if we feel they are playing too dirty: send them letters urging them to run for office. Hopefully, the judge will eventually give plenty of money back to the good guys.

Re:you'd think, but...

[alienw]

That's why you don't represent yourself, and why you don't sue others without a good lawyer. You end up paying more in the end. Maybe if he got an actual lawyer, he would have been able to sue Katzer and get money out of him to pay the legal bills. If he didn't have money, maybe he should have just ignored Katzer. Yeah, the legal system is screwed up, but there isn't much you can do about that. The USA was founded by lawyers, and the legal system is this way on purpose.

Re:you'd think, but...

[NormalVisual]

All I can say is give the lawyers a break

Right, because they've managed to get the system into such a state that you can't get justice in cases like this unless you've got a *big* checkbook to throw at it, have made the entire system so convoluted that the average person can't effectively represent himself in court, and hold enough positions of power in the government such that they can ensure the gravy train continues perpetually.

Of course there are decent lawyers out there too. I know several that are wonderful people, and do their best to abide by their conscience when doing their work. They're not the ones that you see on TV though, and they're not the ones that Congressmen and Senators listen to.

Re:you'd think, but...

[geminidomino]

Of course there are decent lawyers out there too. I know several that are wonderful people, and do their best to abide by their conscience when doing their work.

The problem is that they aren't even a rounding error compared to the total number of lawyers out there.

Re:you'd think, but...

[ajs318]

And then you need a system where (1) the loser pays both sides' costs and (2) not one penny changes hands until the final verdict, after the exhaustion of all appeals, is accepted by both parties.

Re:you'd think, but...

[rjstanford]

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.

Good luck. So far we haven't even come up with a system where people can just randomly plug together electronic components that were designed to be plugged together and expect them to work more than about 2/3 of the time without putting up big bucks for a tech. Law is way more complicated, and way more important.

Pro Se

[Eric Damron]

"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?

[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.

The important legal question

[Guppy06]

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

Have you ever seen milk come out of a judge's nose?

Opportunity to screw one's self...

[woolio]

Nah...

All microsoft has to do to save their ass is to utter 4 magic letters:

D.M.C.A

And you will find yourself in a federal-pound-me-in-the-ass prison.

You will have likely violated: (numbered with your steps)

1) Federal laws regarding the use of telecommunication services/ ISP regulations for TOS.
2) DMCA for circumventing the "time-restriction" measure. (yes, somewhat a liberal interpretation)
3) Fraud/Conspiracy, FTC violations (you *will* be involved in inter-state commerce!)
4) Criminal charges from the IRS... (Or do you plan to pay tax on your ill-gotten gains?)

Not to mention civil lawsuits from M$ for the above, ebay, etc, etc...

Interesting times, eh?

Re:Opportunity to screw one's self...

[TBBle]

1) I'm not clear exactly what law you think I'm breaking... It's a free download Microsoft offers on their website. I doubt either US Federal laws nor the TOS of the ISP I run would prevent that...

2) If they don't have copyright on the item, they can't exactly apply the "Digital Millenium Copyright Act" to it...

3) Again, not sure here what the law you think I'm breaking here... Fraud? It's not like I'm suggesting I put them in identical-to-MS packaging and pass them off as MS-supplied product.

4) Duh, I'd pay tax. I'd hate to have the IRS have to fly out to Australia to arrest me for not paying US income tax... Oh, wait a sec....

And now eBay's going to sue me too? I'm pretty sure they'd fall under the 'unrelated party' exclusion... Unless they're suing me for violating a patent on selling duplicates of commerical items under retail price?

Re: GPL

[Black Parrot]

> Isn't the GPL just a "Click Through EULA", except for the fact that you don't "Click Through" it?

IIRC, FSF actually recommends a click-through.

Dear Eben Moglen,

[MoxFulder]

These haters have dissed the GPL. Please lay the smack down.

Thanks,
Dan

Mod parent +funny

[Black Parrot]

LoL!

Re:GPL

[hairpinblue]

You're missing out on the distinction between the letter and the spirit of the law.

In letter, yes, the GPL is the same as every other license. In spirit, however, the GPL is more of a license of empowerment while most others tend to be licenses of restrictions. The history and philosophy of the GNU project, and especially Copyleft, make this distinction pretty clear. If the distinction isn't already known or obvious to you then you will be doing yourself a favor by perusing GNU--which has a snazzy new look to it since the last time I visited.

As I understand it...

[jd]

...that particular clause is related to the fact that there is no nominal transaction taking place to convey the authority to use from the licensing person or body to the licensee. IANAL, but I believe this is why you get a lot of really strange transactions for a dollar or for a pound, because there needs to be some nominal token of exchange to be a legal exchange. Now, in this case, the license IS a token of exchange, because it can be transferred - and in fact IS transferred whenever someone obtains a copy of the code in source or binary form.

Because you have a transferable token, then it would appear - to my untrained eye - to be a transaction that has involved the payment of that token.

Now, as I understand it, the reason general "free distribution" cases wouldn't be covered is that there is no such token payment and therefore no instrument by which copyright can be carried. This would explain why the general case is NOT covered, but would also mean that this case unquestionably is.

There is another aspect to this. A "Gentlemen's Agreement" requires an agreement between two individuals to be witnessed by an independent third individual. If there is a Gentlemen's Agreement to honour the license as a statement of copyright, then I believe there would be a case for claiming that copyright would apply whether or not it would normally have done so.

Ok, so we have the two parties. Is there an independent witness to an agreement? That one might be interesting to argue. I'd claim that Richard Stallman knows neither party but DOES know what the GPL means and can therefore be an independent witness to the effect that by accepting the GPL, the licensee has accepted the Gentlemen's Agreement. Not sure how well that would stick, though. My suspicion, though, is that if the judge reads and approves of the GPL as a legal instrument, but is 50-50 as to which way to go, the Gentlemen's Agreement argument might be enough to swing it, if such agreements are recognized in that State.

The last possibility is that if the licensee claims that they're not bound by copyright, and since copyright is the sole instrument to allow the licensee to use ANY GPL product whatsoever, Stallman may just declare the licensee Accursed and have them prohibited from using or obtaining ANY GPL product whatsoever, for all of eternity. (Under the license, that IS the standard penalty for blaspheming the GPL in this way.) This would not impact the current lawsuit as much as it opens the licensee up to a lawsuit for EVERY GPL product they use, distribute or possess. Quite simply, the costs involved in defending a massive distributed denial-of-sourcecode attack could cause some serious damage, and because it is an explicitly stated curse, not a single one of those lawsuits would likely be thrown as frivolous.

Absolutely False!

[SpaceLifeForm]

No. If I *choose* to not agree to the {L]GPL, that is
a perfectly valid choice, *BUT*, I still can use the software.

And, at the same time, I could have obtained that software
for free (as in 'legal' currency, aka beer).

There are no *conditions* imposed *unless* I accept the license.

Don't assume that a person receiving something requires
that said person must fork over cash for it.

If you buy into that, you believe in the Microsoft PIPE Fairy.

Re:Absolutely False!

[QuantumG]

You're right of course, but I believe the guy you're replying to was thinking of "use" as "use in software you then redistribute". I think this, because that's what the article is about. Ya know, context?

Re:Absolutely False!

[sumdumass]

There are no *conditions* imposed *unless* I accept the license.

Well, there are technically conditions imposed if you chose not to agree to the license. but those conditions are only the legal rights to distributing the software/code. If you refuse the license (with a GPLed piece of code), you are refusing the only condition to get those rights. SO if you refuse, you cannot give the stuff to anyone else for any reason other then what fair use on copy written work policy might allow.

Everyone who is claiming you need payment isn't looking at the whole picture. They seem to think that because if I give you something free as in free beer, it is yours. But they aren't looking at the hidded aspects of copyright. But,it payment is felt neccesary, the payment with the GPL code and software even if it is monetarily free as in free beer is still there. Doing an action like painting a house for a car instead of the money to buy a car is still income and expenses and generaly considered a transaction. Accepting a license or refusing to accept a license and not distibuting the protected work can be the payment if one needs to be there. Especially when some people place such a high value on free software.

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

[aaza]

What you are saying is all well and good. If you are threatened with legal action incorrectly, yes, your legal defence costs should come in to it somewhere.

What dircha is saying is that he (or she?) should be able to go to a court/public lawyer/magic information booth and state what is occuring (as far as he sees it), and be told if the other party is violating the law, which law it is, and what needs to be done to make it stop. If dircha then acts on this advice, and is wrong, or screws it up, then he loses. And subsequently needs to pay for it.

The comment is about "freely being told which of the amazingly large number of laws do I need to accuse them of breaking", not "I shouldn't have to pay because I picked the wrong one, and they slammed me for it".

Re:Already a $30,000 miscarriage of justice

[catprog]

So if you hire $200 million worth of legal fees vs my $200,000 I should pay your fees?

Re:Already a $30,000 miscarriage of justice

[QuantumG]

Riiiight. Consult a lawyer, pay their fees, sue the bastard, if you lose, pay his fees and sue your lawyer for giving you bad advice. You can't just wish on a rainbow.

Re:Already a $30,000 miscarriage of justice

[QuantumG]

If you lose, absolutely. If you're not right, don't sue.

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:Already a $30,000 miscarriage of justice

[Dhalka226]

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.

I don't consider making false charges in a court of law to be a technicality. In this case, it seems like a legitimate mistakes by a person who has probably legitimately been wronged, but I fail to see any reliable method of judging when it's a mistake and when it's somebody throwing shit at the wall to see what sticks. I hope we can both agree that the latter is a waste of time and taxpayer money and should be punished.

That said, the problem appears to be with a poorly-written law. If you read their little summary page, you will see that the anti-SLAPP law was not intended to be used the way that it was. The fact that it could be is because of the vagueness politicians love to deal in. That vagueness is not an accident, either.

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

Personally I do not want my money being spent on that. These guys are using the time of judges, federal judges which I am helping to pay for. They're using the time of these judges to settle private disputes. Free-vs-closed dogma aside, the outcome of this case will not affect me. Chances are even if you view the issue as some important legal issue that needs to be addressed, the ruling will be constrained enough to have little effect. Precedent says that if the EXACT SAME case came up again, a ruling should go the same as it did previously; it leaves up to the individual judges whether or not the facts of the cases are different. In cases like this, they almost certainly are going to be.

Maybe that means public attorneys who we can go to for legal advice and to file the correct charges in court.

Another thing I don't particularly want to be paying for. Look, if you want to tie up judges to settle your private dispute, that's fine. That's what they're there for. But I do not think it is an unreasonable burden to place on litigants that they either invest some of their own resources into doing it or at least know what they're talking about before they get to court. Not to mention that there is no shortage of attorneys who will work on commission if they truly believe that you have a case. Why didn't he take advantage of that? I'm sorry this guy's mistakes turned out to break the law and make him liable for damages in the way of legal fees, but that's exactly what they did.

I feel for people who can't adequately defend themselves against the tremendous resources of big companies, I truly do. I'm just not sure it is sufficient justification to change the system such that I essentially pay if they can't. As I said before, regardless of the issues involved, this is essentially a dispute between two private entites. You'll notice it's JMRI vs. Asshat, not JMRI and the World vs. Asshat. The outcome effects me very little either way.

This Katzer guy is a cock, and I hope he loses and gets absolutely SLAMMED. I'm just not sure anything that has transpired so far is evidence of some systemic problem with the legal system, and even if it were, the solutions I've seen so far (both your post and from others, this topic and others) seem to leave a lot to be desired in my book.

Re:Already a $30,000 miscarriage of justice

[Kjella]

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+.

That should have most of slashdot jailed indefinately. Look, it's fine to try to assist someone to find laws and precedents but if you're trying to give interpretations and actual legal advice as a service, you'd better put up a big honking "IANAL, this is not legal advice" sign. The legal advice here on slashdot ranges from good (a few actual lawyers) to terrible to the point of getting you slammed in court for contempt, destruction of evidence or perjury not to mention losing your case and ending up in tons of liability or jailtime. There's a reason lawyers have a horribly expensive malpractise insurance, even though they rarely make mistakes compared to a layman. Out of protection for both the advisor and the advised, get a lawyer. If you want to minimize cost, come prepared but run it by your lawyer.

Also remember that there's such a thing as procedure, which neither you nor your layman advisor will know. Particularly if you're up against a frivolous lawsuit, remember that these bastards know the law. While you might have sweets dream at night about bringing them up on all sorts of misuse of court charges and having their lawyers disbarred, it's not going to happen. If you walk in there by yourself, they'll bait the traps for you to fall in and try to pull legal moves a proper lawyer would get thrown out. That is if you haven't already screwed up procedure before you got to court and they're already giving you rope to hang yourself with. One thing is to enter small claims court without a lawyer, but if you're facing an unscrupulous sleezebag with a barracuda lawyer then you will surely regret it.

Re:Already a $30,000 miscarriage of justice

[OscarGunther]

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.

What on earth are you talking about? Whose justice? What standards of justice should you apply?

Jacobsen made the mistake of representing himself. The lawyer who represents himself has a fool for a client. Did he ask the EFF for help?

Our legal system isn't about justice, it's about advocacy. The lawyer, as an officer of the court, isn't there to ensure justice is served--he's there to advise the client and advocate on his behalf. The premise is that justice will out if each side fights as fiercely as possible for its position.

It's probably not an accident that Adam Smith's notion of the "invisible hand" guiding markets was developed in the context of a common law society.

Re:Already a $30,000 miscarriage of justice

[poot_rootbeer]

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.

The other side had lawyers. The other side WAS lawyers. Hiring a lawyer of your own is common sense, especially when you're the one bringing suit.

If Jacobsen could afford an attorney, he should have. If he could not, he should have sought help from one willing to work on contingency. Or his local Legal Aid Society. Or the EFF. It's a shame that his error cost him $30K, but I don't see any way this is the fault of "the trial lawyer lobby" and not his own.

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?

First, I don't believe any such laws exist as you state. Second, those laws that do exist forbidding "answering questions about what a law even means"--a.k.a, practicing law without a license--are designed to protect both the recipients and issuers of legal advice. I can still answer any questions you might ask about the law, but if you use my answers in court and lose, you have no recourse to sue me for giving "bad" advice. If you want good advice, talk to someone who is educated
and accredited in the subject area. An attorney.

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.

It's not a judge's job to listen to someone's story and figure out what laws, if any, may have been broken. That's a waste of the court's time.

Do you have any idea of the abuse that such a system would be subjected to? The nonstop, neverending fishing expeditions? The parade of whiners and crybabies with their longwinded stories of entitlement? It would be a daytime talk show, only worse, and your tax dollars would be spent on it.

There has to be a filter in place to ensure that only worthwhile cases ever make it into the courtroom, yes. IMO, the current system works pretty well. If it's not in a lawyer's economic self-interest to represent you, you may not have a very good case to begin with.

Re:Already a $30,000 miscarriage of justice

[Teancum]

There is also a huge misunderstanding of the difference between the judicial and legislative branches of the U.S. government. (Assuming that we are Americans here... not always true on /.) Of course it seems as though even congressmen and judges get confused about the distinction as well.

As citizens, it is in our interest to debate and hone in on what the law ought to be. And try to pressure legislators to change the law to become this model as we think it should be. This sort of debate is certainly healthy and there is no way that it should be prohibited, even though there are some that would try to convince you otherwise.

One problem with the judicial system in a democracy is that it is a reminant of the old monarchal system where "GOD" (pun intended) decides ultimately what is the law and that is interpreted through His appointed servants in a heirarchal system.

Re:Already a $30,000 miscarriage of justice

[Tupper]

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?

Hey, you can't say that!

Am I the only one...

[natet]

that thinks this argument has much wider implications than just Open Source Software? If the judge rules for this piece of crap argument, it could pretty much shut down the web. Sites like the New York times, and ESPN would be forced to charge for every bit of content on their sites, because if they didn't, they would run the risk of losing control of their copyrighted material.

Re:GPL

[ScaryMonkey]

An interesting point, but no defense in this case. Either way they violated JMRI's copyright. If they argue that the GPL is not a valid contract, then you are basically admitting that they infringed on the copyright without the author's express permission. A different situation, because you still own the thing you purchased if a EULA is not valid, whereas if the GPL is not valid the copyright still defaults to the original holder.

Re:GPL

[SeaFox]

If EULA's aren't enforcable, then why would the GPL be the same?

"In general, a user is not obligated to read, let alone consent to any literature or envelope packaging that may be contained inside a product; otherwise such transactions would unduly burden users who have no notice of the terms and conditions of their possession of the object purchased, or the blind, or those unfamiliar with the language in which such terms are provided, etc."

One thing I can think of off the top of my head is the basis of this case, you don't pay for OSS software.

The reason an EULA is not enforcable is as soon as you open the software it's yours. You can't read the license, decide not to agree to it, and then take the product back to the store and get your money back. Since the open-source software is free, you have nothing to lose. If you don't like it, uninstall it. The end.

And as other people have pointed out, the fact the software is under the GPL does not make copyright non-existant. Since the software was never stated to be public domain, they have no right to copy it and sell it as their own. The GPL is like a pre-signed "premission form" in this usage. Creating an exception to normal copyright, not a replacement for it.

I know why it's bullshit...

[TheVelvetFlamebait]

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

...but can anyone tell me any reason why could hold up in court?

Re:I know why it's bullshit...

[Sloppy]

It won't hold up, because that's not what they really said. They're really saying, "We licensed your software, and if we're not complying with the license, then sue us for that. But once you offered the license and we accepted, then copyright was no longer an issue. The issue, now, is the contract."

Presumably they have figured out that there is some advantage to being guilty of violating a license, rather than being guilty of violating copyright. If you're going to lose, lose the way that hurts the least. :-)

Re:I know why it's bullshit...

[JesseMcDonald]

It won't hold up, because that's not what they really said. They're really saying, "We licensed your software, and if we're not complying with the license, then sue us for that. But once you offered the license and we accepted, then copyright was no longer an issue. The issue, now, is the contract."

Presumably they have figured out that there is some advantage to being guilty of violating a license, rather than being guilty of violating copyright. If you're going to lose, lose the way that hurts the least. :-)

That may be what they're trying to say, but if so I believe they're wrong. I'm not a lawyer (and this is not legal advice), but as best I understand the issue it is actually impossible to violate the GPL (or any similar license). Either you follow the conditions and accept the license (one and the same thing) and thus are granted permission to do something (like distribute a copyrighted program) you wouldn't otherwise be allowed to do, or you don't follow the conditions and don't receive any such permission. The license is in force only so long as it's conditions are followed; if you fail to fulfill its conditions it immediately terminates, at which point you have no permission to e.g. distribute copies of the program, an ordinary copyright infringement issue, not a breach of contract.

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: GPL

[stinerman]

I highly doubt that, but if you can prove me wrong, I'd be happy to see it.

The reason I say that is because you don't have to accept the GPL to use the software. Putting the GPL as part of a click-through would be a restriction on the GPL which doesn't jive. Of course, if you just displayed the GPL, but didn't require the user to agree to it to install the program, that would be fine. Forcing someone to accept the GPL to install the program would be very unfortunate as it would go against the spirit and letter of the GPL.

Re:GPL

[dannixon]

Mod Parent Up! I wish I had points right now.

Aren't they claiming they've been given a license?

[Sloppy]

The Motion, around page 6 says

Defendants seek to dismiss the Copyright act claim on the basis that the right to bring a copyright infringement claim has been waived since Jaconsen granted the general public a nonexclusive license to reproduce, copy, and distribute the open source software.

And then around page 14 it goes into details, where they make the argument that they were granted license to redistribute the stuff. And then they almost admit that they didn't comply with the license, and that they need to get sued for breach of contract.

They certainly don't assert that copyright doesn't apply for Free Software or Open Source. This same exact argument could be used on a shrinkwrap EULA "violation."

I guess it does raise a technical issue, though. When a creator and a user don't actually meet, sign contracts, etc -- when licensing gets implied -- how do you decide it if actually happened?

For example, with either a Microsoft EULA, or GPLed Linux, or whatever, at some point a user may decide to do something that is not Fair Use under copyright. Maybe they want to modify the software and sell 10 copies to someone else (in the case of GPL) or maybe they want to .. uh .. actually I can't think of any rights that MS EULAs grant, but let's ass/u/me that there's some sort of reason a person might want to agree to it. (?!)

When the user goes ahead and does the licensed copyright violation (e.g. selling 10 copies of Linux), it is argued that either they have violated copyright, or they have agreed to the license. Now let's say they are also doing something that is not permitted by the license (such as selling copies of Linux w/out offering the source). So now, they're either violating copyright, or they're violating the license. How do you know which one they did? Just like Microsoft's relationship with their users, you don't have any evidence that they ever accepted the license.

If they sue you for copyright violation, just say you accepted the license -- and then they need to sue you for breach of contract instead. If they sue you for breach of contract, say you didn't accept the license, and then they'll have to sue for you copyright violation instead.

Without evidence of what happened, you make 'em sue you twice. Of course, the second time (assuming they have any lawyer-money left), they've got you.

Re:GPL

[TheVelvetFlamebait]

If EULA's aren't enforcable, then why would the GPL be the same?

Good question.

The GPL grants extra liberties that would not normally be granted, such as the privilege to distribute and modify. You can choose to accept or reject those privileges, as well as the responsibilities, such as the responsibility to provide the source. However, the licence is a package. You can't take the good without the bad.

Kamind & MS

[KwKSilver]

Interesting, they state on the front page that Kamind Associates is a Microsoft Certified Partner and a Microsoft Small Business Specialist. Wonder what MS would do if Kamind took say ... Notepad & rebranded it, as after all, MS gives it away with Windows.... He'd have MS lawyers coming out of the air vents in the roof, and by the time they were finished with him, he'd "walk funny" for the rest of his life.

it's "precedent"

[ChrisCampbell47]

is that a 1998 precident

Argh, that's twice, dude. It's spelled "precedent".

Re:it's "precedent"

[QuantumG]

meh, speeling.

Re:it's "precedent"

[alienw]

Just so you know, you come off as a total retard. Which you probably are, actually. Might want to think about that.

Re:it's "precedent"

[Sponge Bath]

It's spelled "precedent".

Careful! George Bush will think you are referring to him.

The defense makes one good point...

[sbaker]

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.

Re:The defense makes one good point...

[Dachannien]

Well, in Sun v Microsoft, the incompatibility issues that Sun proved in court were ruled to violate an independent term of the license agreement made between the two parties. (Microsoft made their Java incompatible with real Java, which violated the terms of their agreement.) Thus, the court said that while Microsoft had violated their agreement, it didn't mean that they violated copyright law.

In at least some OSS licenses, a license for distribution of the software is granted only as long as the express limitations of the license agreement are followed. If you violate the terms of the agreement, you expressly invalidate the license that permits you to distribute the software. If you then distribute it anyway, you are violating copyright law. As you say, it really depends on what this particular license says in this case, though if it were the GPL, it would probably be ironclad enough to withstand the issue that came up in Sun v Microsoft.

Re:The defense makes one good point...

[sbaker]

Thanks! That's a useful clarification.

Then this should mean that

[Allnighterking]

I can copy and claim as my own the writings of the authors in e-week, business2.0 and my complimentary 3 week subscription to the wall street journal. All of which are given to me free of monetary charge.

Then if free is the criterion for losing copyright

[Allnighterking]

I can copy and claim as my own the writings of the authors in e-week, business2.0 and my complimentary 3 week subscription to the wall street journal. All of which are given to me free of monetary charge.

Re:GPL

[kimvette]

No, because a click-through EULA attempts to strip you of your first sale and fair use rights after the fact, where your right to USE THE PRODUCT YOU PAID FOR can supposedly be revoked, whereas this case is about additional rights (distribution rights) which are subject to specific conditions.

BIG difference.

Distinguishment:

[Stephen Samuel]

A more complete reading of the decision only shows that there are situations with a copyright-associated license where you can only sue for contract violations.... For example, Microsoft's requirement that you can't discuss benchmark results without their permission only classifies as a contract term -- This is because, when I talk about how Access is 10 times slower than YourSql I'm not distributing any MS code, so I'm not violating their copyright.

The determination in the Sun Vs MS case wasn't that Sun didn't have a copyright case because of the contract -- but rather that the judge didn't distinguish that MS was violating copyright (as opposed to contract) before (s)he issued an injunction under the (far more lax) rules of copyright infringement.

The GPL, on the other hand, simply says that I only have the permission to distribute MySQL if I'm following the terms of the license. Thus, if I'm not following the rules of the GPL, my only defense is that I'm not violating copyright. i.e. a GPL case is solely a copyright case, with the defendant having only two credible defenses:

1. I'm not distributing your software (and thus not violating copyright), or
2. I'm following the GPL, so you're estopped from suing me.

IANAL, but I think that claiming that a GPL suit isn't about copyright is going to be a seriously uphill battle (as in almost vertical).

From http://jmri.sourceforge.net/k/docket/100.pdf (PDF warning; see page 13):

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.

Re:You just don't get it

[QuantumG]

What is so hard for *you* to understand? I am not saying that these guys are not violating the GPL. I am saying that they are violating the GPL and that it doesn't matter, because there's this stupid precedent that says that if you provide redistribution rights then you've forfeit your right to sue third parties who violate the license. Under pre-1998 copyright law the GPL is rock solid, this change to the copyright law by precedent puts a gapping big hole in the GPL. If the judge of this case sees it the same way, we're all fucked.

Re:You just don't get it

[A nonymous Coward]

The GPL is not in perpuity. It is not irrevocable. It is not forever, permanent, starched, or non-trans-fat.

If they violate the GPL, they lose that protection.

Re:You just don't get it

[Curunir_wolf]

because there's this stupid precedent that says that if you provide redistribution rights then you've forfeit your right to sue third parties who violate the license. Under pre-1998 copyright law the GPL is rock solid, this change to the copyright law by precedent puts a gapping big hole in the GPL.

Site? Parties?

Re:You just don't get it

[tinkerghost]

First the software in question isn't GPL, it's BSD - the only requirement is attribution.
Second, the Sun V MS decision - as spun by the defendant - says that granting blanket distribution rights under license transfers the issue from copyright law to contract law. In short, I am not violating copyright law, because I do have a license to copy. I am violating the contract, because I am not following the terms of the license, but not copyright.
If this was GPL, the auto revocation features may proof it against this, but it may take a cease & desist order prior to filing the actual copyright complaint.

Re:You just don't get it

[DragonWriter]

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?

Its easy to understand, the problem is that while it may be the way the Free Software Foundation would like copyright and contract law to work, it is not generally the way copyright and contract law actually is applied by the courts. A copyright license is governed by contract law, and the remedy available for its breach is generally one for breach of contract, not for copyright violation; a copyright license will act as a covenant not to sue for copyright violation by the copyright holder that the courts will enforce.

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.

Well, no, that's not true, either.

If there are ANY flaws in the GPL, those EXTRA redistribution rights would automatically be cancelled.

False; flaws in a contract do not necessarily render the contract void, they may render some part of it unenforceable while the contract remains, may justify one party seeking reformation of the contract in court, and even if they do make the contract unenforceable in its entirety as a contract, the fact that promises were made in an instrument that was not valid as a contract does not mean that those promises cannot be enforced under, for instance, the legal doctrine of promissory estoppel.

The GPL grants EXTRA rights, and if it fails, those extra rights die with it.

That's a nice theory, but one completely out of touch with the way the applicable law actually works.

Re:GPL

[Workaphobia]

> Isn't the GPL just a "Click Through EULA", except for the fact that you don't "Click Through" it?
> Same, really, if you ask me.
> We want our cake (GPL, OSS, etc) but we wanna eat it too (i.e. all EULA's are invalid, thus don't bind us or count).

No. Unless I'm severely mistaken, the GPL is nothing like a EULA because a EULA dictates rules and conditions that are supposed to govern your usage of the software as soon as you have purchased and installed it. The GPL on the other hand covers distribution. You can do whatever you like with a GPL program, including modifying it without releasing the changes to the source, so long as you keep it to yourself, because the GPL terms only kick in if you start handing out copies to other people.

The idea that EULAs are invalid comes from the absurdity of attaching a contract to any other copyrighted work such as music, artwork, and literature. By default you can do what you like with these - no one makes you sign an agreement (yet) saying that you can only listen to a CD if you're in your car or its your birthday. But you cannot copy and redistribute a work by default (barring Fair Use). This is illegal except through the terms of the GPL, or whatever other license the author chooses. If the license has a condition that says you have to walk on you hands and spin around three times before you're allowed to send a copy to someone, you're allowed to not obey that term; you simply lose your authority to legally make the copy.

Re:GPL

[dido]

The GPL isn't an EULA. It's a pure copyright license. It grants you the right to do things (like copying, making derivative works, and so forth) which are normally prohibited by copyright law. You are not required to accept the GPL, and you don't even have to accept it in order to make use of software covered by it. You only must accept it if you would do things with the GPL-covered work that would be otherwise be prohibited by copyright law, because NOTHING but the terms of the GPL permit you to do those things. It's really that simple.

Hate to break it to you

[A nonymous Coward]

If the grantee violates the GPL, the granter is NO LONGER granting redistribution rights, and the ex-grantee's continued redistribution falls back on standard copyright law.

Repeat after me. Violation of the GPL terminates your redistribution rights and it falls back to a standard copyright violation. The 1998 precedent has no bearing whatsoever because you are violating copyright law.

Keeriminy it's simple.

Re:Hate to break it to you

[QuantumG]

If your right sue to third parties for copyright infringement is forfeit then it doesn't matter that they have no right to distribute the software, you can't sue them.

Re:Hate to break it to you

[A nonymous Coward]

Your right to sue them is only forfeit as long as they are following the license.

Duh.

If they violate the license, they lose that protection.

Duh.

It falls back on copyright with no protection from the now-violated license.

Duh.
Duh.
Duh.

Re:Hate to break it to you

[QuantumG]

Sigh, there's no talking to you is there? Why would you want to sue them if they were following the license? How could you sue them if that were the case? What would be the point of the judges decision that you can't sue them for violating the license if you provide third party distribution rights? Pull you head out of the sand and think.

Re:Hate to break it to you

[mattpalmer1086]

So if a major music label releases a video of one of their expensive artis^^^^ products onto popular video sharing sites, and grants a license to anyone to reproduce this video anywhere they like (but not to remix the images and sounds contained within them into another product), they can't sue anyone who takes the music, or any of the images and uses it in something else?

So no marketing trailers or snippets can be protected by copyright anyone? I don't think this precendent means what you think it means. And can you provide a link to it please...?

Re:Hate to break it to you

[QuantumG]

Ummm, definitely. That is what I believe this finding says. Similarly, when Microsoft gives out "redistributables" and then says "but you can't use these binaries on Linux", I think they can't sue you if you do. Well, of course, they can sue you, and you can go broke before you even get to court, but if you happen to be rich enough to defend yourself, this is the defense you would use.

Re:Hate to break it to you

[mattpalmer1086]

Intriguing... but can you provide a link, or at least some more contextual information so I can find out what this precedent actually is?

Can't seem to find it from the information you've provided, and I suspect it would be shot down very quickly if anyone else relied upon it... say someone defending themselves from the RIAA!

Re:Hate to break it to you

[QuantumG]

Google for Graham v. James , 144 F.3d 229, 236 (2d Cir. 1998). This finding is used in just about every case of copyright violation. For example RT COMPUTER GRAPHICS, INC., vs United States Postal Service. They claimed the post office was violating copyright because they used some of their computer graphics in a stamp. The post office's reply is that they secured a license to use the graphics through a third party. RT Computer Graphics claimed that the use in stamps was not authorized. The post office claimed that matters of contract are null because they don't have a contract with RT Computer Graphics and, as such, RT Computer Graphics can only sue them for copyright infringement, but because the post office has a license, they can't. Post office wins. That's my understanding anyway. Ahh, here's the finding. I'll probably read all this now and find out I'm wrong :)

Re:Hate to break it to you

[QuantumG]

Graham claims that even if James owns the copyright in the C version, Graham was licensed to use the copyright under a licensing agreement, and that the district court therefore erred in finding that Graham was an infringer. According to Graham, James was entitled at most to recover for Graham's breach of the licensing agreement.

Under federal law, "nonexclusive licenses may . . . be granted orally, or may even be implied from conduct." 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 10.03[A][7], at 10-43; see also I.A.E., Inc. v. Shaver , 74 F.3d 768, 775-76 (7th Cir. 1996). The district court found that Graham and James had entered into a licensing agreement under which Graham promised to pay James $1,000 for each CD-ROM release containing the C version and one dollar for each disk sold. Graham does not contest on appeal that he breached this agreement by failing to make the required payments, and therefore we affirm the district court's award of breach of contract damages. 3

However, the award of copyright damages in this case is problematic. A copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement. See Jacob Maxwell, Inc. v. Veeck , 110 F.3d 749, 753 (11th Cir. 1997); Peer Int'l Corp. v. Pausa Records, Inc. , 909 F.2d 1332, 1338-39 (9th Cir. 1990); see also United States Naval Inst. v. Charter Communications, Inc. , 936 F.2d 692, 695 (2d Cir. 1991) ("[A]n exclusive licensee of any of the rights comprised in the copyright, though it is capable of breaching the contractual obligations imposed on it by the license, cannot be liable for infringing the copyright rights conveyed to it."). Moreover, Graham's failure to credit James with the copyright on the C version did not itself amount to copyright infringement. According to Nimmer, "The generally prevailing view in this country under copyright law has been that an author who sells or licenses her work does not have an inherent right to be credited as author of the work. In line with that general rule, it has been held not to infringe an author's copyright for one who is licensed to reproduce the work to omit the author's name." 3 Nimmer on Copyright , supra , 8D.03[A][1], at 8D-32 (citations omitted). 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.

Check that shit out. And here's the bit that really fucks the GPL:

Generally, "[i]f the [licensee's] improper conduct constitutes a breach of a covenant undertaken by the [licensee] . . . and if such covenant constitutes an enforcible contractual obligation, then the [licensor] will have a cause of action for breach of contract," not copyright infringement.

and

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."

That's what the GPL tries to do, it tries to make it clear that providing source code is a condition, not a convenant, but try as it may, it has been upheld that

contract obligations that are to be performed after partial performance by the other party are not treated as conditions.

And that's the rub. You are allowed to distribute GPL'd code in binary form provided that you accompany it with a written offer to provide source code (partial performance). If you then fail to provide source code, you can only be sued under contract law, not copyright law. You havn't violated c

Re:Hate to break it to you

[mattpalmer1086]

Thanks, most interesting.

Re:Hate to break it to you

[ray-auch]

Check that shit out. And here's the bit that really fucks the GPL:

Generally, "[i]f the [licensee's] improper conduct constitutes a breach of a covenant undertaken by the [licensee] . . . and if such covenant constitutes an enforcible contractual obligation, then the [licensor] will have a cause of action for breach of contract," not copyright infringement.

A GPL licensee does not undertake any covenant. The GPL is not a contract. Therefore there is no cause for action for breach of contract.


If you then fail to provide source code, you can only be sued under contract law, not copyright law


That might well be correct - since you have met all the terms of the licence, and just failed to execute on your written offer, which is not part of the licence. The GPL does not require that you honour your written offer (really, it doesn't) - you just have to provide it.

The FSF have various theories about how you can't get around the licence in this sort of way (google "subterfuge" and "user does the link") but that might depend on the court's view on whether or not you ever intended to honour your written offer. If you intended to but circumstances changed (eg. product discontinued, no longer supported, and the company lost the code) then you may well be ok.


  If you obtained your license through a third party then you have no contract with the copyright owner and only the copyright owner can sue you for contract violation


The GPL is not a contract - however you obtained your GPL license, no one can sue you for contract violation. Also, only a party to a contract can sue for contract violation, and the copyright owner is the only one who can sue for copyright violation.

If you issue written offers to provide source, then a recipient of one of those could possibly sue for contract violation (although with no consideration, even that may not fly).

Re:Hate to break it to you

[squiggleslash]

Ok, I think I'm beginning to understand where QuantumG is coming from, and it's not as simple as you make out.

The scenario being described is this:

1. Party A provides a copy of Project X and a "license" (it'll become clear why I'm putting it in quotes) to Party B which allows them to redistribute under the same terms.

2. Party B then provides a copy of Project X and a "license" to Party C (the same "license")

3. Party C violates "license".

4. Judge rules Party B is the only party (assuming it has any rights at all) that can sue Party C. Party A can't, because it granted a license to redistribute to Party B, and Party B is obeying the license. It never came to an agreement with Party C, therefore what Party C does with the code is none of its business. If Party C can prove that Party A never supplied it with the copy, and it was provided by a legal licensee, who has no direct rights to sue either (ie all they've done is copy the project, they have not introduced their own copyrighted materials) then nobody can legally sue them.

I don't believe QuantumG's correct. The problem is the difference between a license and a contract, and I suspect that the judge wasn't ruling on a license so much as an EULA (a license combined with a contract.)

The reason I don't believe it's correct is that the GPL is just a license. It isn't an agreement between Party A and Party B, it's an entirely one way offer from Party A to all other parties allowing them to do something they otherwise wouldn't be able to do. There is no meeting of minds. If QuantumG is correct, then the entire concept of a license is bunk and meaningless, in every category, not just copyright. It means copyright law is also going to have severe problems.

But who knows. The law's an ass quite often, and IANAL. Moreover, I'd like to see the actual ruling rather than comment upon a third party confusing rendition of it.

Re:Hate to break it to you

[civilizedINTENSITY]

While it may be true that "contract obligations...are not treated as conditions", that presupposes that they are contract obligations and not conditions. Therefor, you arguement rests on the fact that if they are contract obligations, and not conditions, they fall under contract law and not copyright law. However, the case at hand is not one of "improper conduct (that) constitutes a breach of a covenant undertaken", but rather one where "the nature of a licensee's violation consists of a failure to satisfy a condition to the license". In order to cry WOLF, you have to assume that the failure to satisfy a condition of the license is in fact a breach of covenant undertaken.

In a nutshell, while "the nature of a licensee's violation consists of a failure to satisfy a condition to the license", at the same time failure to satisfy a license condition does constitute failure to satisfy a condition of the license. Since the GPL is 100% copyright license, there is no contract that has any possible breach of covenant issues. Now if you had to meet a contract's obligations in order to recieve the copyright license, and you failed to meet those obligations, *then* you'd have recourse to contract law (but not copyright law) for failure to meet the terms of the contract. Notice that this implies both a contract *and* a copyright that involves said contract.

Re:Hate to break it to you

[Qzukk]

The problem is that it MAKES NO SENSE. Sure, maybe it is a real precedent. So was the whole "companies are people too" precedent. So maybe there is a Real Problem, but it will likely be "fixed" if JMRI can afford to appeal it enough.

What you're saying that this precedent says is that because Metallica allows radio stations to play (aka "redistribute") their music, I can copy their music, send copies to all my friends, post it on my website, and even rename it to Qzukkman and sell it as my own song, and Metallica can't sue me for copyright infringement because by giving someone redistribution rights, they've forfeited their right to sue me. If not, then you need to explain what makes this case "special", compared to all of the free giveaways out there today that are still protected by copyright law.

Re:Hate to break it to you

[QuantumG]

I'm going to reply to you, and no-one else who has made this stupid argument that media companies might be at risk by this too. Metallica's label does allow radio stations to play (aka "redistribute") their music, but they don't allow radio stations to pass on that license to you. That's the difference, the GPL does. If Metallica's label was unhappy with what the radio station was doing with their music, they could sue the radio station, yes, but they would have to do it under contract law, not as a copyright infringement. If Metallica's label was unhappy with what you were doing with their music, they could sue you, yes, but they would have to do it under copyright law, not contract law, because they don't have a contract with you. If, however, as some kind of "viral marketting" promotion, Metallica's label was providing a song that a radio station could pass to you and you could pass on to your friends, then they would neither be able to sue you for copyright infringement (because you have a license), nor would they be able to sue you for contract violation (because they don't have a contract with you). So if you decided to do any of those things you suggested as absurdities, even if their license said you could not, and in this very specific situation, then yes, you'd have no problems (assuming you could afford to defend yourself at all).

Re:Hate to break it to you

[DragonWriter]

If the grantee violates the GPL, the granter is NO LONGER granting redistribution rights, and the ex-grantee's continued redistribution falls back on standard copyright law.

"Automatic termination" clauses (like Section 4 of the GPL) are generally not, despite the wording in contracts, when they operate to the exclusive benefit of one party, generally held to actually effect an automatic termination, but rather to allow the benefited party, when they learn of the event, and affirmatively take action, to terminate the contract.

Re:Hate to break it to you

[Qzukk]

OK, so it IS the license that makes it different.

But the GPL (section 4, both versions) voids itself if you violate it. So by violating it, they no longer have any license from anyone to redistribute it, and the precedent still should not apply, since there is no longer a contract for them to have breached. They simply have source code that may have been given to them by a person with a license to give them the source code, but no license to further redistribute that code or software to anyone else.

Re:Hate to break it to you

[QuantumG]

Section 4 is a laugh. Take a look at my comment on that little chestnut. That's a clear cut case of license obsolence. This is the real reason why GPL v3 is so important, precedents are making GPL v2 unenforcable.

Re:Hate to break it to you

[Qzukk]

This is the real reason why GPL v3 is so important

What can GPLv3 do against the premise of the first precedent: "It's impossible to allow people to relicense your work to others and still maintain the ability to enforce your copyright"?

As for the precedent you cite in the linked post, why do we even have termination clauses in contracts (other than "it terminates when I say it terminates" which seems to be the standard set by that precedent) if they can't do anything? Are they just an artifact of boilerplate legalese that mean nothing anymore?

As for JMRI, if they're blocked from suing on copyright infringement, they can go to court on the grounds that they believe that the source code was obtained from them (or from an automated mirror acting on their behalf), and therefore the license was obtained from them, and they are thus in position to sue for breach of contract. It'd be interesting to see if Katzer would claim they downloaded it, and then downloaded it to themselves (are they allowed to have licensed it to themselves? What about if they claim one person at the company downloaded it and another person at the company downloaded it from them? Or from a friend? Can one "conspire" to break a contract?). Otherwise, if Katzer claims they downloaded it from someone else, you go and find that lucky person and hope he's willing to play the lawyer game. Either way, it should be reasonably easy to track down all of the places hosting JMRI source code and decide who holds the other end of the license Katzer is breaching.

Re:Hate to break it to you

[QuantumG]

The reason the GPL v3 is so important is that the legalise will be updated to avoid precedents like this.

Where's the problem ?

[Eivind]

Where, exactly, is the copyrigth protection "problem" here ?

Somebody *claimed* something ? Oh golly !

Look, anyone can claim anything. I can claim the moon is made out of cheese, doesn't mean astronauts landing there has an actual problem finding rocks.

The claim is absurd. Facts:

• The software is covered by copyrigth. (for the simple reason that everything is, unless you've got an explicit statement from the creator placing the work under public domain)
• For copying/redistributing copyrigthed works, one requires the permission of the copyrigth-holder.
• The GPL gives you a conditional permission: provided you follow certain rules, you are allowed.
• If you *don't* follow those rules, then the GPL does *not* give you permission to redistribute.

Dead simple really. It's impressive that some lawyers and companies have managed to avoid understanding this after *decades*. More likely they *have* understood it, but are making the claim anyway out of desperation.

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

[QuantumG]

I'm not saying anything. 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" where "non-exclusive" means third party redistribution. The exact interpretation of the ruling, and the precedent it sets, is one that threatens the GPL.. why is it so hard for people to accept this. The judge wasn't thinking about the GPL when he decided this, so he didn't take the uniqueness of the GPL into account, but that means nothing. His finding is a valid framework for building a defense against suit by a copyright owner who has used the GPL. It sucks, but there it is. Now, if the judge in this new case has any sense he'll through it out because he'll fully understand what the intention of the GPL is and that the GPL is adamently clear in this purpose, but he might not! If that happens, we're all screwed. So stop saying "is not" and think about it.

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:What you are saying doesn't make sense

[hopeless case]

I see you beat me to it. I just finished reading the decision myself and was about to make the same point.

Just to put it in my own words, the paragraph (from the court decision above) is making the distinction between failing to uphold a duty (convenant) imposed by the license (like making a payment required by the license), and failing to satisfy a condition of the license (like you are allowed to distribute binaries compiled from the source but not source code itself, or you are allowed to distribute source and binary together but not binaries by themselves). Failing to satisfy a covenant doesn't mean you are guilty of copyright infringement because the court can force you to make good on your convenant to repair the damage done (like making you pay unpaid bills).

Failing to satisfy a condition of the license that grants you rights, however, and you *are* guilty of copyright violations, because then you are exercising rights that were not granted you by the license, and which are denied to you by copyright law unless granted by a license.

Re:What you are saying doesn't make sense

[hopeless case]

I meant to reply to your comment and somehow messed it up. My comment is shown as a reply to the parent of your post, instead of to your post.

Anyway, I have another point to make. If you look further down in the judgement you quoted, you can see where the court is discussing what happens when the copyright owner rescinds a license. That is, the licensee breaches a covenant of the license which means the owner can sue for breech of contract but not for a copyright violation, and the owner then decides to rescind the license for the violator by taking affirmative actions like sending a cease and desist letter.

Any further violations of the owner's copyrights are then treated like copyright violations.

Since most GPL cases are about getting the offending companies to stop using GPL code after informing them that they are in violation and rescinding their licenses, this case (Graham V. James) seems to favor the GPL defenders and not the attackers.

If you were trying to get the huge amounts of money that copyright violations make possible for actions that occurred before you took affirmative action to rescind the lisence for that offending company, however, then this case could block you.

Re:What you are saying doesn't make sense

[gr8_phk]

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" where "non-exclusive" means third party redistribution.

So if someone is in violation of the GPL, where do they get a "non-exclusive license" to redistribute? If you haven't lived up to your obligations under the GPL, you don't have any redistribution rights. End of story. The correct way to press a case like this is to claim copyright violation (not GPL violation). The defense needs to show that they have the right to redistribute, and to do that they will have to point to the GPL - and show compliance with it.

Re:What you are saying doesn't make sense

[DragonWriter]

I'm not saying anything. 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" where "non-exclusive" means third party redistribution.

That wasn't a novel decision, the idea that a license generally includes a covenant not to sue under the law forming the basis for the power which makes the license necessary is a fairly old one that's been the basis for patent decisions, etc., for some time. (And the principal isn't restricted to non-exclusive licenses, as shown by US Naval Institute v. Charter Communications, F.2d 692, 695 (2d Cir. 1991), cited in Graham v. Jones: "[A]n exclusive licensee of any of the rights comprised in the copyright, though it is capable of breaching the contractual obligations imposed on it by the license, cannot be liable for infringing the copyright rights conveyed to it.")

The importance of the holding has nothing to do, really, with "redistribution", it is simply this: so long as a license was not rescinded prior to the alleged breach, the only action the licensor has against the licensee for the breach of the terms of the license relating to the rights conveyed by the license is one for breach of contract, not one for violation of copyright.

The exact interpretation of the ruling, and the precedent it sets, is one that threatens the GPL.. why is it so hard for people to accept this.

Well, I'm not sure that that's true.

The judge wasn't thinking about the GPL when he decided this, so he didn't take the uniqueness of the GPL into account, but that means nothing.

The judge was applying established principles of law when he did it, which the GPL has no power to change, in any case.

His finding is a valid framework for building a defense against suit by a copyright owner who has used the GPL.

Only if they are improperly seeking a copyright remedy where the proper action is one for breach of contract.

Now, if the judge in this new case has any sense he'll through it out because he'll fully understand what the intention of the GPL is and that the GPL is adamently clear in this purpose, but he might not! If that happens, we're all screwed. So stop saying "is not" and think about it.

The purpose of the GPL doesn't change broader principles of law, in any case. The Free Software Foundation doesn't have the power to create law.

Re:What you are saying doesn't make sense

[DragonWriter]

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.

To the extent that this is true at all (and I think that, in practice, such terms are interpreted as allowing rescission but not effecting an automatic rescission, though I'm not as certain on that point), it is easy to show that the license ended after the violation, Which still does not permit copyright action (as opposed to breach of contract) for the violation itself.

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.

In many states (and state law governs contract interpretation), there is a preference to find that terms are covenants rather than conditions, and the word "condition" in an agreement is not given very heavy weight in determining that. Rather, the natural relation of the promises is looked to. The structure of the GPL doesn't support any of the terms being conditions precedent to the license, it seems more likely that they would be held to be covenants that the licensee makes in exchange for the license to modify, redistribute, etc.

Re:What you are saying doesn't make sense

[QuantumG]

My favourite part of Graham v. James when it comes to the GPL is this:

"The failure of a party to perform his part of a contract does not per se rescind it. The other party must manifest his intention to rescind within a reasonable time."); see also Jacob Maxwell, Inc. , 110 F.3d at 753

Compare that with section 4 of the GPL

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

What absolute fiction!

Re:What you are saying doesn't make sense

[tehcyder]

IANAL (but I play one on /.

Why not just use IANALBIPOOS?

Oh...

Re:What you are saying doesn't make sense

[rtb61]

What is interesting about the civil suit is not that the defendent loses the rights to redistribution but that they should lose the rights to 'free' distribution.

There is nothing to stop the claimants for suing for damages due to the lose of reputation and the damage to earnings. Open source software allows coders to publically demonstrate their software coding skills, which is very important in creating a marketable value and income potential.

When someone denies them that oppurtunity by falsely claiming their work as their own, it immediately will limit their marketing oppurtunity and cause significant harm to their future income potential. So the proprietary thieves should be forced to hand over all income derived from the fraudulant use of open souce products.

I hope the commercial company wins

[Digital Vomit]

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

I hope the commercial company wins. Distributing something for free should automatically strip something of its copyright. This would also have the positive side effect of putting everything the media companies show on TV, the radio, or the web into the public domain where it should be. No more broadcasting music or movies to everyone's house so they can be watched or listened to for free, then trying to sue everyone because they're sharing those same things.

Re:I hope the commercial company wins

[Teancum]

That would mean the end of free broadcasting the the requirement of a "broadcast" tax like is currently done in England and Germany.

No, I would not appreciate this precedent being acknowledged and supported by SCOTUS (upon eventual appeal). While there would be some short term gain, it would be disasterous in the long term.

Frankly, I doubt this line of reasoning would hold up anyway, and the GPL would change to accomodate this if it happened as well. Charging a penny per download of the software would end the argument cold. Or $1.

License vs. Contract

[VGPowerlord]

Is it just me, or is there a difference between these two?

As I understand it, a contract is an agreement drawn up between two parties giving one or both parties permission to do something in exchange for something else. Termination of a contract usually has serious repercussions, normally spelled out within the contract.

A license, on the other hand, grants permission for the licensee to do something until it is revoked by the licensor. Hence why the state of Michigan could revoke my Driver's License if it thinks I'm driving badly.

Hence the license to distribute JMRI could be revoked by the JMRI group and normal copyright rules resume.

I hope they win

[bogado]

This would qualify every single movie, music or tv series that has been broad casted in the air for free as public domain. Sure it would weaken GPL a lot but imagine what this would do to with the entertainment industry...

If this is their argument I don't think they have any chance of winning.

JMRI's Google adverts

[Pembers]

I just gave them $20. Paypal sent me to their project page, which has some Google adverts on the right-hand side. Guess whose site is at the top of that panel? That's right - kamind.com... the same guy who's saying copyright doesn't protect their software. I'm sure he'll appreciate helping to pay for their defence...

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.

This logic would also...

[mysidia]

Mean copyright of shareware doesn't apply, mean copyright of public web pages doesn't apply, broadcast TV, etc.

Hopefully the court shoots down this claim "copyright doesn't" apply fairly quickly.

Actually,

[hummassa]

I believe (after a preliminary analysis) that a great deal of the network stack in Linux is a derivative work on iptables... if that is really the case, to yank iptables you would have to have a network-less Linux... which is _not_ very useful for some purposes.
YMMV.

Re:Actually,

[QuantumG]

Or, ya know, use one of the BSD licensed stacks.. it's not like Berkley sockets is intimately tied to the kernel.

Re:Then if free is the criterion for losing copyri

[Tim C]

So good, you said it twice!

How does this apply to the RIAA?

[RingDev]

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

OK, so they are stating that they can't be in violation of copyright laws because the property is given away for free. That they are only chargeable with the violation of the contract.

So how would this president carry into other copyright disputes? If a radio station broad casts a song, they are 'giving it away for free.' So If I make a copy of that broadcast and sample, or re-release it, would I be exempt from copyright violations as well? Only liable for a breach of contract with the original vendor?

-Rick

Do licenses work like that?

[Grendel Drago]

If one part of a license or contract is ruled unenforceable, does that mean that the other parts still hold?

If I leave a hundred grand to my daughter in my will, but on the condition that she marry someone in particular, can she still get the money even if she doesn't marry the guy? If I leave a hundred grand to my daughter in my will, but on the condition that she retains her citizenship for at least a year, can she still get the money even if she gets thrown out of the country next week?

Damn, I asked a lawyer friend about this at some point, and he said it depended on the nature of the requirement, but I don't exactly remember. I think one of those is a legitimate requirement and the other isn't, but I don't recall.

Copyright doesn't apply to Photoshop...

[a strange guy]

, because I got it from bittorent "for free"?

Copyright tied to selling a work?

[J'raxis]

Copyright law as of the 1976 reforms grants automatic copyright to any creative works, whether or not someone registers them with the government. Not all creative works are done for profit (obviously), yet they can still be copyrighted. Therefore, this argument is ridiculous.

Karma doesn't burn, idiot

[Mateo_LeFou]

It's made of ether. Not the flammable kind of ether, the luminiferous one

Not as clear as that

[tinkerghost]

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.

That's the whole argument, you can be in violation of a contract, but still not be breaking the governing law. The argument is not that the license is invalid - which would invoke copyright violations - the argument is "it's a valid contract and we are breaking it. Please sue us under contract law."

If, as a publisher, I have a contract to print 15,000 copies in 1 edition, and I print 15,002 copies, I am in violation of my contract, not copyright. I have a valid license to print the work, I just didn't follow the terms of it.

If, on the other hand, I print a second edition of 15,000 copies, then I am in violation of the copyright statutes, because I don't have a license to print them. - Yes it's a subtle difference, but that's what lawyers make their money on.

Likewise, the OSS projects grant a blanket license to everyone to copy, distribute, and create derivative works, subject to specific limitations. Therefor, everyone has a valid contract and violations of that contract are governed by contract law, not copyright law.

MOD PARENT UP: risk of stupid judge!

[KWTm]

Mod parent insightful. I think we all agree that the GPL is pretty straightforward. However, judges have done stupid things in the past. Parent poster gives one possible way the (intent of the) GPL can be misinterpreted, and possibly still be within legal bounds. We Slashdotters should develop some debate about this so that we can collectively gain some insight into how to respond to the potential error in interpretation given above, in much the same way that we were able to brainstorm about the SCO fiasco. It might even help JMRI indirectly.

There's no need for further responses about how the parent poster (also the great-grandparent poster) should understand the GPL. I think he understands it perfectly, as do we all. But the judge ... well, that's a different story.

Oh, and why isn't this on Groklaw already? This is a way more explosive issue than Java being open-sourced. This is the test of the GPL, for crying out loud.

penalties are everything

[tinkerghost]

Violating copyrights are $750/copy statutory. Plus the possibility of criminal prosecution. Contract violation boils down to pay what the costs are plus triple damages. Oops, the damages are $0, OK, I'll be generous, have a nickel.

Re:penalties are everything

[jgoemat]

But of course if the license is terminated by their breach, the license no longer applies and they are violating copyrights, correct?

Re:penalties are everything

[tinkerghost]

terminating a license doesn't retroactively initiate copyright violations.

Re:penalties are everything

[tinkerghost]

Depends on how the license is written. GPL says that failure to follow revokes the license, not all of them do.

Lots of problems....

[tinkerghost]

• The software is covered by copyrigth[sic].(for the simple reason that everything is, unless you've got an explicit statement from the creator placing the work under public domain)

  There is a lot of material which is not suitable for copyright - tables of facts are not copyrightable, nor under many interpretations, are header files - as lists of names not creative works. However, yes, the software in question is under copyright.

• For copying/redistributing copyrigthed[sic] works, one requires the permission of the copyrigth-holder.

  correct

• The GPL gives you a conditional permission: provided you follow certain rules, you are allowed.

  Correct, but the software appears to be a 'attribution only' style license.

• If you *don't* follow those rules, then the GPL does *not* give you permission to redistribute.

  Correct, except ....

  1. It's irrelevant because the software in question isn't GPL
  2. "If you follow the rules (your concideration), you can distribute (my concideration)" meets the criteria for a contract. Contracts supersede copyright law - per Sun v MS.

That's the argument. Not that they have a right to do what they are doing, but that "If they are in violation of anything, it's the contract, not copyright law."

Re:Lots of problems....

[Eivind]

So, you're saying, if I write the following:

anyone gets a licence to distribute my software [SloggyWare] if, and only if you do X, Y, and Z

Then, if you distribute my software without doing X, Y and Z, I can only sue you for "breach of contract", and *not* for copyrigth-violation ?

That makes zero sense whatsoever.

The contract says you are given a licence, if and only if you do to X, Y and Z.

If you haven't, then you also have no licence. If you distribute without being in posession of a licence, you're breaking copyrigth-law.

I would argue that in this case no contact between us exists *at all*. A contract requires active, informed concent from all involved parties to be valid. You never signed the contract, and you never entered into it implicitly by doing what was required of you. On what basis would you claim that there is a contract between us at all ?

You where *offered* a contract, I *declared* that I'll enter into such an agreement with anyone who wishes to. (do X,Y,Z get licence to distribute) But you didn't *take* the offer, thus there *is* no contract.

The GPL says this very explicitly: You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License.

Yes, this wasn't under GPL, but the GPL here only makes explicit what is true anyway. It's perfectly voluntarily to agree to the GPL, you don't have to at all. If you *don't* however, you have no permission to redistribute. If you redistribute without permission, you're breaking copyright-law.

Re:Lots of problems....

[tinkerghost]

Copyright law is a default statute. It only applies if there is no agreement. The presence of an agreement - abided by or not, invokes contract law - per the spin on the Sun V MS case.
Also, the GPL's explicit statement is a breach of contract clause - essentially revoking all rights of distribution if the terms are not satisfied. Without a specific clause, penalties are determined under contract law. Material breaches of a contract do not automatically void the contract. That type of fallback must be explicitly stated.

If you redistribute without permission, you're breaking copyright-law.

The issue is I do have permission, just not under the terms I'm doing it. That's the very fine edge of the case. Which side the judge will come down on is up in the air, and I suspect it will have a lot to do with the exact wording of the license involved.

Re:Lots of problems....

[Eivind]

Copyright law is a default statute. It only applies if there is no agreement.

No. It always applies.

Copyrigth law says: You cannot legally distribute without permission. That *always* applies. Offcourse you can still distribute if you *do* have permission, the law never said anything else.

The presence of an agreement - abided by or not, invokes contract law - per the spin on the Sun V MS case.

Contract-law is relevant if there is a contract. (that's sorta a -duh-)

A contract requires a two (or multi) sided agreement that is actively agreed to by all involved parties. If I write the following sentence: "I will give you a beer if you wash my car." that is not a contract. That is an *offer*. It only becomes a contract the moment you agree to it: You answer: "Ok, I accept your offer" (or something to the same effect). After this we have a valid contract, and contract-law is relevant. *before* you agree though, there *IS* no contract. A contract *requires* active acceptance from atleast 2 parties. Otherwise it's at most an offer.

The GPL (and other free licenses) thus *aren't* contracts up until you voluntarily choose to agree to their terms. You are free to completely ignore their existence. In which case your permissions are ruled by copyrigth-law. (which applies whether you agree to it or not, that's sorta the distinction between contracts and law...)

It is complete bullshit to claim that the mere existance of the GPL (or similar licenses) mean that breaking copyrigth-law with works that are covered by them is automatically a contract-dispute and not a copyrigth-violation.

Any action forbidden by copyrigth-law is a copyrigth-violation if you perform it without permission. Plain and simple. The only way you can claim you're not breaking copyrigth-law would be to claim that you *do* have permission. (well, or that you yourself are the author, or that the work in question is not covered by copyrigth)

If you redistribute without permission, you're breaking copyright-law.

The issue is I do have permission, just not under the terms I'm doing it.

No you most definitely do not. If I say: "If X, then Y" it does *not* follow that Y regardless of X.

Are you saying that if I say: "If you clean my car, you can grab a beer in my fridge", then you can choose to grab the beer without first cleaning the car, and then claim you're *not* guilty of theft (because you have permission to take the beer) only guilty of breach-of-contract because you didn't fulfill your half of the deal ? I suspect you yourself see that that is nonsense.

"Entrance forbidden, unless you're family!"

You enter anyway, despite not being family.

You then claim you're *not* guilty of trespassing, but only of "breach of contract" because you only failed to fulfill your part of the agreement by marrying someone in the family. It won't fly.

"Entrance for authorized personell only"

You enter anyway, despite being in no way authorized. You subsequently claim you're not guilty of trespassing, but only guilty of breach of contract. It's not gonna fly in any court I can think of. (US law is ridicolous, but not *THAT* ridiculous)

It already did

[tinkerghost]

The whole issue is that when Sun released Java and allowed implementation, they used essentially an open license without the free to modify clause - companies were free to implement and distribute Java so long as the behavior didn't change. MS modified the code - the whole E^3 issue. When Sun sued under copyright violations, the court determined that MS did in fact have a license, the open license Sun provided, and that the proper venue was contract law, not copyright law.
It might not be what you expect, but it is a valid position from the courts point of view. Contracts overwrite copyright law. If there is a contract in place, then the contract's terms govern the transactions not the copyright law. GPL specifically has a breach clause - it says breach this & the penalty is voiding of your license, and copyright law governs the transaction. Most of the other OSS licenses do not have a breach of contract clause in them. Including the one in question.
Also don't forget, when you accept my terms for the OSS license, I get a distribution channel as a consideration.

Re:It already did

[tinkerghost]

When Sun sued under copyright violations, the court determined that MS did in fact have a license, the open license Sun provided, and that the proper venue was contract law, not copyright law.
In other words, the Microsoft guys tendered the best offer.

When you start with the statement that MS simply purchased a decision, there's not a lot of room for rational discussion, unless you would like to show proof of questionable financial transactions.....

It might not be what you expect, but it is a valid position from the courts point of view.
The courts are wrong.

Why, thats great, we can just come to you to get our decisions in the future - no need for this whole court thinga-ma-bobbie.
It is the courts job to decide which forms of law take precedent. There are frequently statutory civil laws regarding issues which can be overruled by specific grants of authority or contracts specifically detailing deviations from the statutory baseline. One example, which is becoming more common is pre-nuptial agreements. Statutory code indicates - in most US states - that the assets of a married couple are split 50/50. A prenuptial agreement can alter that in any way. When prenups are voided by a court, they are usually done so on the grounds that the contract itself is void do to inherant imbalances or technicalities in the contract itself - not because statutory law rules.

Contracts overwrite copyright law. If there is a contract in place, then the contract's terms govern the transactions not the copyright law.
Care to cite a statute that proves this? Or are you just going by the current whims of the judiciary?

Hmm, lets start with the fact that the ruling was issued in January of 2001. It's not a current whim of the judiciary, it's a 5.5 yr old case.
A statute that specifically indicates that contract law takes precedent over copyright law, not likely - if there were, then it wouldn't have needed a ruling.
However, if contract law does not take precedent over Copyright law, then there is no means to create a distribution channel. If a copyright holder can go to court and say I'm violating his copyright, and contract law doesn't trump copyright law, then that license I contracted for at $50M for is worthless.
Now, if instead of statutes you would like precedent, then we can go for:

• Silvers v. Sony Pictures Entertainment, Inc. shows contractual transference of cause of action overrules the Copyright statement that only the copyright holder can sue.
• This [pdf warning] has some discussion of how contracts and licenses can overrule Copyright grants of fair use etc, and is linked to a case study of iTunes with some more details.
• But in 1917, Supreme Court Justice Oliver Wendell Holmes ruled that all uses of copyrighted work, even those for which a specific fee was not charged, required compensation. This ruling is also cited in the Sun v MS ruling, again showing that the ruling was not based on a whim, but 80+ yr old precedent.

Also don't forget, when you accept my terms for the OSS license, I get a distribution channel as a consideration.
How does a "distribution channel" count as a *benefit* to the author? Distribution channels without financial compensation to the author is precisely what copyright law was designed to prevent.

Given that distribution accounts for up to 80% of the production cost, a free distribution network can be of substantial value. In FOSS, the goal is not specifically financial compensation, if it were, free distribution with no financial renumeration would be counter productive. In the case of the Artistic license involved in this case, the goal is a widespread presence of the copyrighted work and crediting of the author. In this cas

Re:It already did

[tinkerghost]

It is the courts job to decide which forms of law take precedent.

No. It's the courts job to pass sentence, and make rulings of guilt or innocence according to the statues.

The people who drafted the statutes know the intent of the statute; the judges don't. When you don't know what your boss wanted, you ask him; you don't invent laws on the fly. Again, the courts are wrong. And again, they get away with it, because only a judge can limit the power of another judge.

Which statues? Local? Federal? Copyright, contract, Criminal? They are often overlapping and frequently conflicting. It is exactly the job of the judge to determine which of these apply to a given situation. Doing so does not "invent new laws on the fly", just because you disagree with a decision doesn't make it wrong. As to only a judge limiting the power of another judge, I simply state that impeachment proceedings are not held by other judges.

Any judge can rule contrary to precedent, at any time, for any reason he or she deems valid. Precedent is no more important than fashion; and typically, just as devoid of common sense.

Check again, ruling against precedent is a very good way to get your ruling overturned. One of the reasons judges are appointed not elected is that they can avoid playing games with their rulings to get re-elected. Yes, precedent can be overturned, but doing so normally requires several small cases which each nibble a bit of the foundation for the precedent followed by a final case to create new precedent.

When you start with the statement that MS simply purchased a decision, there's not a lot of room for rational discussion, unless you would like to show proof of questionable financial transactions....

Is there really any question that they did exactly that in the anti-trust settlement? Or do you think the DoJ and the courts did an about turn for no reason? Or do you think judges have magically grown more honest since then? I don't.

The judiciary didn't drop the issue, the Attorney Generals office caved, not the Judiciary. The difference is that Bush's administration said back off & agreed to pathetic reperations instead of following the course suggested by the judge in the case. The Judge doesn't get to have much say when the prosecution caves.

Given that distribution accounts for up to 80% of the production cost, a free distribution network can be of substantial value.
I can host a domain for $200/year. I get paid $200/day. A free distribution network has little, if any, value to me. If I want a free, worldwide distribution network, I can post to Usenet for pennies a day.

and

In this case, free distribution with no financial renumeration is completely in line with the goals of the copyright holder, and therefor does provide a benefit, and thus a compensation as required by Justice Holmes.
The person who infringes copyright is not required to distribute the work. The "distribution network" you like to pretend will benefit me may not even exist.

What you can do, is really irrelevant. As a consideration, that it exists is enough to satisfy a contract.

In the case of the Artistic license involved in this case, the goal is a widespread presence of the copyrighted work and crediting of the author.
Who are you to say what the goals of the author were? Maybe they don't care how widely distributed the work is, so long as their work is credited. And again, retaining credit for authorship is part of the rights they already have under copyright.

The goals of the author can be inferred from the license they choose. The Artistic License is a fairly open license. It has multiple options with regard to compliance with distribution, the constant is retention of the original copyright notices. Retaining credit

Re:Aren't they claiming they've been given a licen

[spitzak]

Redistributing GPL software without source is a copyright violation, because you are not doing something the GPL allows. Thus it is exactly the same as though the GPL was not there, your actions are exactly as legal/illegal whether or not the GPL is on the software because it is outside the scope of actions the GPL has any effect on. The GPL is really a license that says "you are allowed to violate the copyright on this code if you do the following things...". It has absolutely no say in what you are allowed to do if you don't do those things.

Thus not following the rules is explicitly a copyright violation. Unless what you are doing does not violate copyright laws (such as fair use). Whether what you are doing is legal or not has absoltely NOTHING to do with the GPL and it is irrelevant whether the GPL is there, thus in no way are you "violating the GPL".

You could do a legal argument that you *are* following the GPL's rules, but that does not appear to be what is being tried here.

No: distribution, not use

[A nonymous Coward]

You have to agree to the GPL to distribute the software. The GPL explicitly states you can use the software without agreeing to the GPL.

Kinda

[jgoemat]

# "If you follow the rules (your concideration), you can distribute (my concideration)" meets the criteria for a contract. Contracts supersede copyright law - per Sun v MS.

I don't follow you. If they have no right to distribute, how can they not be sued under copyright law? So if I purchase a DVD (money being my consideration and the DVD being the store's), and I then copy that DVD and distribute it on the internet, does the company have to do something with the "contract" of the purchase? No, I am violating their copyright. There isn't anything in the license that specifies copyright violations are void. Termination is often specified as a remedy for license breach. If you could violate a license and still continue to distribute after termination, that becomes meaningless.

A "license" specifically grants you rights you would otherwise not have. The reason you don't have those rights is because of copyright law. Your remedies for someone using your work without permission are spelled out in copyright laws. Without the consideration (following the rules) on your part, you are not authorized to distribute and the author may seek remedies specified in copyright law.

Re:GPL

[DragonWriter]

The GPL isn't an EULA. It's a pure copyright license.

No, its a license to redistribute the software and to create and distribute derivative works.

It is not limited to whether the licensor's right to impose terms for those activities descends from copyright law; if the licensor holds patent or other rights that allowed it to control the same activities, it licenses those as well.

Re:Aren't they claiming they've been given a licen

[DragonWriter]

If they sue you for copyright violation, just say you accepted the license -- and then they need to sue you for breach of contract instead. If they sue you for breach of contract, say you didn't accept the license, and then they'll have to sue for you copyright violation instead.

Without evidence of what happened, you make 'em sue you twice.

Or just once, with claims phrased in the alternative.

Awesome

[obeythefist]

Now I can download all the MP3's I want. Copyright isn't an issue because they're being given away for free. On Bittorrent.

Re:Awesome

[obeythefist]

Thanks... I was just poking fun at the judge. It was a very uninformed statement to make in a court, just because a product is free as in beer doesn't mean it's free as in speech.

Under the same logic, however, the RIAA really has no avenue to enforce the copyrights they hold as the music is played for free (effectively) over radio broadcast. As RIAA has given away the music, they clearly deserve no right to enforce copyright, by the logic of the judge.

This is an awesome precedent that will completely invalidate all copyright, in fact. As soon as one evaluation copy of any software is released anywhere, that codebase immediately enters the public domain, because copyright cannot be enforced on it. The only preventative measure is to use the DMCA, by placing a mechanism to make the code unreadable, and therefore the only way to see it would be to violate the DMCA to break in and have a look at the code. (Although, the work may not be covered by copyright because according to superjudge's precedent, it was given away free, even if it was in a compiled format).

More info from the developer

[BobJacobsen]

I'm the developer who's currently involved in the legal battle over the JMRI software with Matt Katzer.

First, thanks for all the moral and financial support. It's really appreciated.

I'd also like to clarify a couple of points.

I'm working with an attorney, Victoria Hall of Rockville, MD, on this. I'm not a lawyer, and have only a civilian's idea of intellectual property law, so I'm not certain how all this is going to go. But I am absolutely, 100% determined to do whatever I legally can to ensure that Katzer's behavior is not allowed to continue. Originally this was about the damage he was doing to my fellow hobbyists in the model railroad community, but now it's about protecting the rights of open source groups. I simply cannot allow him to succeed in destroying this open-source project, or other people will adopt his tactics.

About anti-SLAPP: I think it is important to point out that Katzer KNEW that the Department of Energy wasn't involved in the JMRI model-railroad project, but he lied in declaration and stated otherwise. Because of the way anti-SLAPP works, the Court had to accept that as fact, and that's the reason Katzer and Russell prevailed. If Katzer had told the truth, none of this would have happened. We left off certain state law claims from the Amended Complaint out of concern that Katzer would again lie his way to another anti-SLAPP award. I paid his legal fees because the Court ordered me to do so, but we intend to seek the return of that money once we show that Katzer lied in his declaration. And we intend to seek criminal charges against Katzer.

For those of you who are lawyers, have lawyers, or are with open source interest groups, we would welcome you to file an amicus brief in support of copyright and license protection for open source groups. Some groups are considering filing amicus briefs, and others are taking a pass during this round.The next hearing is December 15th. For more information, please contact Victoria Hall at victoria@vkhall-law.com.

For those of you in the San Francisco area, it would be great if you could come out and attend the hearing to respectfully support open-source software. The hearing will be held at 9AM in Judge Jeffrey S. White's courtroom, Courtroom 2 on the 17th floor of the Federal Court Building, 450 Golden Gate Ave., San Francisco.

For those of you who'd like to hear more as future events unfold, please subscribe to the "jmri-legal-announce" mailing list on SourceForge. This will carry short announcements occasionally as news happens; there won't be a lot of traffic. It's not a list for discussion and strategizing; for various reasons, we can't do that on a public list.

Thanks again for the support,

Bob

Re:GPL

[dido]

No, its a license to redistribute the software and to create and distribute derivative works.

But well, that is precisely the definition of a copyright license. Redistribution and creation of derivative works are actions restricted by copyright law, and the GPL grants you a license to do these things which are otherwise prohibited by copyright, under certain conditions.

What has GPL got to do with anything?

[Christian Smith]

Lots of people are harping on about GPL conditions etc. This software is not licensed under the GPL! Check the software's license.

Re:GPL

[DragonWriter]

But well, that is precisely the definition of a copyright license.

No, its not. In order to license those actions, of course, a license must be (whatever else it may also be) a copyright license if the licensor holds copyright to the material. But those actions are not only protected under copyright, and therefore a license that license those actions without express restriction to copyright is not only a copyright license except where the only rights the licensor holds which would allow him to prohibit other people from taking those actions happen to be in copyright.

The GPL is a copyright license, but it is not only a copyright license, at least not as it is written (in practice, it is probably usually only a copyright license, because generally material is probably released by people whose only applicable rights are in copyright.)

Its in some sense analogous to a quitclaim deed in real estate, viewing the "actions" it addresses as the analogs of the physical plot of land in the real estate case: it doesn't say what rights the licensor has regarding the actions it addresses, merely that, subject to the restrictions in the license, the licensor promises not to prevent those actions.

Re:Then if free is the criterion for losing copyri

[Allnighterking]

free as in unencumbered not as in cost. So it would become "All of which are given to me unencumbered by monetary charge."