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Copyright Protection Problems For OSS Project
An anonymous reader writes "There's a federal case in the Northern District of California where copyright for open source is being challenged. The free software project JMRI discovered that a commercial company was
using some of their files in a product, in violation of the license. They added a copyright claim to an ongoing legal action about cybersquatting, software patent abuse, etc. The patent case was covered on Slashdot back in June but the copyright part is new. The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"
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
Doctors destroy health, lawyers destroy justice, universities destroy knowledge, religion destroys spirituality
It's being given away with conditions. The condition is that you obey the licensing agreement.
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.
W..w..W - Willy Waterloo washes Warren Wiggins who is washing Waldo Woo.
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.
File under 'M' for 'Manic ranting'
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!
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.
So when did your mother change her name to "FOSS"?
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.
Slashdot: Failed Car Analogies. Amateur Lawyering. Anecdote Battles.
I'm sure MPAA, RIAA, ESA, BSA and friends will have something to say aboutthis. Some of their software then gets hit pretty hard (demos aren't copyrighted, snag the code!; MP3s of songs; clips of movies; movie promotional materials on a website...)
I 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.
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.
Weaselmancer
rediculous.
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...
I don't know how well it would apply to software, but there is an established precedent in publishing that says it is illegal to steal things that are offered for free. An example of this would be taking an inordinate amount of free newspapers from the stands.
While those copies are being offered for free, they were not produced for free. This is why so many of such free papers now bear a label similar to "Take one, if you want more, contact the editor."
In the software world, the open source plaintiffs could argue that, while their product is offered for free, it was not produced for free. That, and the license under which the defendant agreed to use the software specifically states that they must follow the terms of the license in order to use the software.
Colin Dean Go a year without DRM
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".
[alk]
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.
evil is as evil does
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.
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.
Please help metamoderate.
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 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?
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.
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.
When information is power, privacy is freedom.
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.
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.
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.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
If you read the actual court documents, what the defense seems to be saying is that the license (which evidently isn't GPL - it's some kind of Xfree or Berkely style license) requires them only to give credit to the authors - which they have evidently not done and this they do not seem to deny (although, of course they don't admit it either!). The significant part of their argument is that say that the consequence of their failure to do so is not a violation of copyright law - but instead a breach of the license terms of the software. Then they point to Sun vs Microsoft over Java in which it was ruled that MS had not violated copyright law but had instead breached the terms of their license.
IANAL - but that seems reasonable to me. Of course now they need to be stuck with a charge of breaching the license terms - but that's evidently not what the prosecution have accused them of. The problem is that the Xfree and similar licenses don't have cast-iron legal language as GPL does - so with weak language describing the 'licensing' terms - it seems possible that the defendants could indeed weasel their way out of this.
Personally, I think that if you are going to use one of those licenses, the best you could hope for is a one line mention in the very small print of the Albanian section of the user manual - somewhere between the environmental impact statement and the warning not to let children under 3 years play with the software because of choking hazards. Why the heck you'd find that important escapes me. If you want solid copyright protection, use the GPL - if you want utter freedom for people to do whatever they like with your code - then don't be surprised when they do exactly that.
www.sjbaker.org
My interpretation is that as long as you provide a link to the author's web page somewhere on your site, you are golden.
Sounds like you can incorporate the open-source code into a commercial program, as long as you do not advertise that you are using it!
There are also no patent requirements -- at all! Which means someone can patent the ideas in the source code and then sue the original copyright holder -- while distributing the code! Since the existence of prior art does not render an issued patent invalid, this is a distinct possibility. Not to mention, how are you going to argue monetary damages if there are barely any restrictions?
Really, it sounds like the guy suing JMRI is mostly in the right, legally speaking. The artistic license may not be enforceable, and appears to give him the right to distribute the code commercially. The breach of contract suit won't yield any monetary damages -- the license is not restrictive enough. His patents are valid (at least until the USPTO revokes them, which may never happen). All I can say is... should have used the GPL.
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.
Infuriate left and right
> 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.
Evidently, the key to understanding recursion is to begin by understanding recursion. The rest is easy.
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!
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.