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Strong Court Ruling Upholds the Artistic License
dilute writes "The US Court of Appeals for the Federal Circuit (an authoritative court that normally deals with patent law), has issued a strong ruling (PDF) upholding the Artistic License in a copyright dispute between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under the Artistic License, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version." Read on for more, below.
Dilute continues: "The lower court denied relief, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). In a strong ruling, the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses."
Reader ruphus13 point to Lawrence Lessig's commentary on the ruling; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
As well as most EULAs I suppose... or is a legal distinction made between license for personal use vs. license for redistribution?
In the US at least. Has there been any similar cases in Canada or other countries outside the US?
Going on means going far
Going far means returning
Sadly, I will sleep better at night knowing that there is some favorable precedent regarding open licenses.
It's actually a really easy case to win. I wouldn't worry about it holding up in any nation's court. All you need to ask is two questions...
1. Do you have a license to use this copyrighted code?
If no, they lose the case. If yes...
2. Did you abide by the terms of your license?
That's it.
Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.
This too:
The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit... Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.
Good to know the court system can still work!
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
I believe you mean "distribute", not "use".
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Katzer and company really need to be smacked down.
On their web site, they try to create the impression that they had their own solution and didn't copy any code from the open source guys, but, then, in court, they fully admit that they in fact, did that.
So, they stole a bunch of code, made some money on it, then, they admitted it in court, but continue to lie to the public about what they did.
I mean, how sickening is that?
This is my sig.
Yeah, the GPL was upheld in Germany as valid.
The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.
These licenses are NOT EULAs. They're all largely publication and derivative works licenses- with the royalties being whatever the terms of the license requires for being able to publish the stuff to downstream recipients.
No license?
No publication. No derivative works.
You publish or make a derivative work without the license to do so, you're guilty of willful infringement of the rights holders. That carries a much, much nastier penalty than accidental ones and it's something Verizon and Actiontec did NOT want to face the music on in court- so they settled out of it once it got filed.
I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
You think that, but you should note that this is an appellate decision: JMRI actually lost the first time!
Granted, if you read the original court's decision it's obvious that the judge didn't understand the issue at all -- which is not necessarily the judge's fault, as JMRI's case wasn't argued very competently in my opinion -- but it still happened.
"[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz
"You" is you, if you're thinking about copying or distributing this Package.
That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves. Also, the license is automatically binding for anyone who is thinking about using the license? Compare to a Creative Commons license, where
"You" means an individual or entity exercising rights under this License...
You'd think programmers would know better than to let ambiguities like that by. (And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road.)
This is rail nice. I do believe open licenses are at a critical junction. Kamind certainly bit off more than they can choo.
"Free" might aquire yet another meaning, something like "Free as in a Dollar".
It might have to do with the "Consideration Exchanged" part of contract law. I'd forego a dollar's worth of benefit for software to slide by that rule on the software side. "A Dollar's benefit" could be interpreted like "A Dollar's worth of NYCL's time"... which would be a reply to a comment here.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
when's the last time you had to agree to an EULA to [...] even played a (console-based) video game you bought?
I had to click through a license screen to get some features of my Wii console to work. I don't remember the exact words, but it appeared to prohibit me from modifying the console to accept software developed by entities too small to be eligible for a license from Nintendo.
The U.S. Court of Appeals for the Federal Circuit (an authoritative court
Well thanks, dilute - I always thought the U.S. Court of Appeals for the Circuit Court was just a joke that everyone laughed off. Now I see it's an authoritative court.
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The GPL is a EULA. It's also a DLA (distributor's license agreement). It grants you the right to make unlimited copies of the software either for your own use (EULA) or for distribution under the terms of the license. That's what the L stands for. Without the GPL, you would not be allowed to copy/install/compile the work on a single computer, let alone many, without violating the copyright.
The distinguishing feature of the GPL that makes it seem like it isn't a EULA is that it grants much, much broader permissions for redistribution and modification to the licensees than any commercial EULA. But these are still licensed permissions with binding conditions on the licensee, and not public domain relinquishment of the rights attached to copyright.
We are the 198 proof..
The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.
If they were unenforceable, the whole concept of copyright would suddenly appear to be a pile of nonsense to all the "intellectual property" zealots like the RIAA, MPAA, etc.
It's not even just that: Katzer also went and got patents over the concepts expressed in JMRI, which were only granted because he failed to disclose JMRI's prior art to the patent office, and then sued the JMRI people for infringement of their own code!
It would be nice if the OSS community chould foot the bill for a few high profile ads publicizing this case, and specifically Katzer's actions. It would go a long way toward creating awareness about the software patent process and how badly it is failing.
Note that this is a copyright decision, by the CAFC, which normally does not handle copyright cases. They had subject jurisdiction here because it was also a patent case, and that is something they have jurisdiction over.
So how does this fit in as precedent? In future copyright cases, that do NOT have that patent component that gives CAFC jurisdiction for the appeal, does the district court follow the precedent of the appeals court for the circuit it is in, or this CAFC decision?
Reading the tortured history of this case was a real eye-opener. I hadn't really thought about the lengths that some people will apparently go to steal from the community, lie to regulators, and engage in what must have been a very expensive legal fight.
All that for model railroad software?
I am so thankful we have the legal support to fight and win these kinds of battles. Thanks to all involved for sticking up for all our rights.
"We receive as friendly that which agrees with, we resist with dislike that which opposes us" - Faraday
I want to know if Bob Jacobsen got his $30,000 (legal fees paid to the scum suckers) back.
Well, at least you didn't mention Ruby.
Agreed! I did read through the entire judgement --I figured I'd take my turn as the 0.1% of Slashdot to read the article so that the rest of Slashdot didn't-- and here are some comments.
This judge. Jeffrey S. White, was surprisingly familiar with free and open source licenses, mentioning the GNU GPL and the MIT OpenCourseware licenses. I wonder if he already had some familiarity, or whether it was the amici curiae from the Creative Commons Corporation and from the Wikimedia Foundation? Anyway, good job on all of them!
This judgement reminded me of why it was important to get advice from lawyers. Something that seemed plain-as-day to me turned out to be a focal point of debate. I've always assumed that, with a license like the GPL or other open source licenses, if you don't abide by the GPL, then the GPL doesn't apply --it's as if the GPL didn't exist-- and now you've violated copyright law. In this case (which is not GPL but the Artistic License, it wasn't so obvious: the defendants argued that the license itself freed the defendants from copyright law, and if the defendants then violated the license, then it was just a license violation (contract law) rather than copyright violation. This was how the defendants successfully argued at the Northern California District Court. Fortunately, the Appeals court overrode this, taking into account the spirit of the Artistic License and keeping in mind the other open source licenses. But it was a point I never thought would be questioned.
As the judgement points, the difference between license violation and copyright violation is especially important because, with license (contract) violation, you only get economic damages in return. If you write F/LOSS, then usually you can't really say that you've lost a million bucks because they stole your software. But this judge recognized the non-economic benefit of licensing under F/LOSS, and specifically said,
In other words, "money isn't everything".
If the law decided that the problem was license violation, then Microsoft could violate F/LOSS, and then toss it a few coins and say, "Sorry --here's some spare change for your troubles." With the law deciding that it's a matter of copyright and not contract violation, the judge can tell Microsoft, "I don't give a rat's ass how much money you have --stop what you're doing or you will be caned."
I'm sure the GNU GPL, having been thoroughly vetted by Eben Moglen, has clearer language than the Artistic License, which prevents such loopholes, but it's still good to see a judge that understands the issues. Judge White has remanded the case --I think this means that he's sent the case back to the District Court saying, "Go try this case again --you didn't do your homework properly the first time."
(Incidentally, was this the same judge that Slashdot covered a year or so ago where he lambasted the lawyers on both sides for not doing their homework? Name sounds familiar somehow, but I can't place it.)
404555974007725459910684486621289147856453481154 in hex is "You sank my Battleship?"
[GPG key in journal]
Haha, if I post this, then my karma will be modded up all the way!
Hey, wait, who are all these other people who have posted under the same nickname as me?
United States Court of Appeals for the Federal Circuit 2008-1001
ROBERT JACOBSEN, Plaintiff-Appellant,
v.
MATTHEW KATZER and KAMIND ASSOCIATES, INC. (doing business as KAM Industries), Defendants-Appellees.
Victoria K. Hall, Law Office of Victoria K. Hall, of Bethesda, Maryland, argued for
plaintiff-appellant.
R. Scott Jerger, Field Jerger LLP, of Portland, Oregon, argued for defendants-
appellees.
Anthony T. Falzone, Stanford Law School, Center for Internet and Society, of
Stanford, California, for amici curiae Creative Commons Corporation, et al. With him on
the brief was Christopher K. Ridder.
Appealed from: United States District Court for the Northern District of California
Judge Jeffrey S. White
United States Court of Appeals for the Federal Circuit
Appeal from the United States District Court for the Northern District of California in
case no. 06-CV-1905, Judge Jeffrey S. White.
__________________________DECIDED: August 13, 2008__________________________
Before MICHEL, Chief Judge, PROST, Circuit Judge, and HOCHBERG, * District Judge.
HOCHBERG, District Judge.
The Honorable Faith S. Hochberg, District Judge, United States District Court
for the District of New Jersey, sitting by designation.
We consider here the ability of a copyright holder to dedicate certain work to free
public use and yet enforce an Aopen source@ copyright license to control the future
distribution and modification of that work. Appellant Robert Jacobsen (AJacobsen@) appeals
from an order denying a motion for preliminary injunction. Jacobsen v. Katzer, No. 06-CV-
01905 JSW, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007). Jacobsen holds a copyright to
computer programming code. He makes that code available for public download from a
website without a financial fee pursuant to the Artistic License, an Aopen source@ or public
license. Appellees Matthew Katzer and Kamind Associates, Inc. (collectively
AKatzer/Kamind@) develop commercial software products for the model train industry and
hobbyists. Jacobsen accused Katzer/Kamind of copying certain materials from Jacobsen=s
website and incorporating them into one of Katzer/Kamind=s software packages without
following the terms of the Artistic License. Jacobsen brought an action for copyright
infringement and moved for a preliminary injunction.
The District Court held that the open source Artistic License created an Aintentionally
broad@ nonexclusive license which was unlimited in scope and thus did not create liability
for copyright infringement. The District Court reasoned:
The plaintiff claimed that by modifying the software the defendant had
exceeded the scope of the license and therefore infringed the copyright.
Here, however, the JMRI Project license provides that a user may copy the
files verbatim or may otherwise modify the material in any way, including as
part of a larger, possibly commercial software distribution. The license
explicitly gives the users of the material, any member of the public, Athe right
While discussing (and rejoicing) in this decision, I'd suggest we all say thank you to Richard Stallman for his work on "copyleft" licensing. It is possibly the single greatest innovation in modern software development and, without it, our world would be a darker, more depressing place.
RMS, you rock dude!
Finally we have figured out how to make money with free software:
1. Develop an attractive free software product.
2. Wait for greedy capitalists to exploit the product.
3. Shake the greedy capitalists in copyright litigation.
Since they are not fixed in the medium. They are malleable and last only as long as your have the game installed or are playing it.
Playing the game is MOST DEFINITELY an ephemeral copy.
So wrong in fact that it is hard to point out where it is wrong.
Rather like trying to point to the atmosphere while standing in it.
If the license to use the copyrights says you must do X, Y and Z then if you don't do X, Y or Z then you cannot use the copyrights. So you cannot produce a copy to distribute and you cannot create a derivative work.
If the EULA says to use the program (which doesn't require using the copyrights) you must to A, B and C, then not doing A, B or C means you can't use the copyrights. But you aren't using the copyrights, so copyright is not broken. Now you've broken the agreement but that is a contractual thing.
If you can touch ram (and, I can -- I installed some in my computer a few weeks ago) or a hard drive, then it's sufficiently tangible. The fixation requirement just means that it has to be accessible for more than transitory duration.
http://topics.law.cornell.edu/wex/Contracts/
Not contradicting you on the "forced" discussion, but (at least in the U.S.) contracts most definitely require consideration and the core definition of a consideration is that it is a "benefit" to the grantee.
In your book publishing example, a contract existed whereas in the case at hand no contract could have existed (because there was no acceptance of one by the infringing company).
In the book publisher example, acceptance would have been explicit. The case at hand would have been more interesting if the defendant had previously complied with the APL terms and only subsequently broken them since then they might have argued a contract was previously established through implicit acceptance. *THEN* your book publisher analogy would have been apt.
To match this case's actual circumstances, an accurate book publisher analogy would have had the book publisher purchase one copy at retail and then proceed to produce and sell copies of that one. That's why CD and DVD 'pirates' are prosecuted under copyright law rather than contract law.