An Open Source Legal Breakthrough

jammag writes "Open source advocate Bruce Perens writes in Datamation about a major court victory for open source: 'An appeals court has erased most of the doubt around Open Source licensing, permanently, in a decision that was extremely favorable toward projects like GNU, Creative Commons, Wikipedia, and Linux.' The case, Jacobsen v. Katzer, revolved around free software coded by Bob Jacobsen that Katzer used in a proprietary application and then patented. When Katzer started sending invoices to Jacobsen (for what was essentially Jacobsen's own work), Jacobsen took the case to court and scored a victory that — for the first time — lays down a legal foundation for the protection of open source developers. The case hasn't generated as many headlines as it should."

Comments

I'm trusting the summary this time

[ccguy]

And the second link is the reason why.

Same as going into a morgue usually is a good test for students considering a medical career, this link is a perfect test for lawyers wanna be's.

Re:I'm trusting the summary this time

[nomadic]

For once, a programmer actually summarized a legal decision more or less accurately, it's quite surprising...

Re:I'm trusting the summary this time

[Anonymous Coward]

http://jmri.sourceforge.net/k/index.html

Re:I'm trusting the summary this time

[nomadic]

Actually I spoke too soon, the more I read it the less accurate the summary is. I should have known I was giving a coder too much credit for legal analysis (no offense, coders, but you yell at lawyers and judges for faulty technology analysis all the time). It may be splitting hairs, but the court here wasn't looking at whether open source license provisions were enforceable in general (in fact both parties seemed to recognize that they were), but whether violating those terms falls under copyright law protection.

The court here is simply being asked to determine whether violating an open source license agreement constitutes copyright infringement. If it does, then the trial court can enjoin the defendant from infringing. If it doesn't, then the defendant's remedy is seek damages under contract law. If damages are his only remedy, however, then the court isn't supposed to grant injunctions. Even if the trial court had been upheld, that doesn't mean that open source licenses would have been invalidated, just that violating the terms of the license didn't infringe a copyright, but rather a contract.

Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights. The appellate court disagreed, and explicitly recognized that an open source licensor does gain an economic benefit from releasing open source software, in terms of such things as better reputation, business opportunities, and the improvement of the released software. The main point of the opinion is therefore that going beyond the terms of the license is a copyright violation, and therefore all the legal remedies for copyright violations are available.

Re:I'm trusting the summary this time

[nomadic]

If it does, then the trial court can enjoin the defendant from infringing. If it doesn't, then the defendant's remedy is seek damages under contract law.

That should read "the plaintiff's remedy."

Re:I'm trusting the summary this time

[Sloppy]

Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights.

That court has lost its way, and the appellate court's decision doesn't really correct it (though it certainly helps Jacobsen's case).

Copyright law is meant "to promote the progress of the arts and .. sciences." Anyone who looks at it in economic terms only, ignores an entire spectrum of human motivation, of which economic advantage, while important, is merely a part.

People sure as hell don't acquire things (e.g. train control software) for economic reasons ("ooh, my model train is now more efficient; I can finally crush my play-freight-delivering competitors!"), so why would economic reasons be the only motivation for producing things? It's absurd. It's also something any amateur programmer -- no, actually, any hobbyist in any field whatsoever -- would trivially understand.

Re:I'm trusting the summary this time

[slimjim8094]

That's a huge victory. The license on distribution of things like the GPL is based on copyright. Damages aren't really the issue; people releasing something under GPL probably aren't in it for the money. Yes, damages can have a putative effect, but not explicitly and the offending entity doesn't have to stop.

The goal is to get them to stop breaking the terms of the license and release their source code (and otherwise comply). You can't force that without an injunction, if the offending party is willing to pay.

As far as the summary, it's not incorrect, just not including the details of how the ruling enhances the 'protection of open source developers' (by allowing injunctions and other copyright-infringement remedies)

IANAL, but feel like one in my armchair :). Please correct me if/when I'm wrong, but don't be an ass - I appreciate my understanding being improved, and you don't need to insult my intelligence. Thanks...

Re:I'm trusting the summary this time

[GooberToo]

So to summarize, this validate open source licences have merit, as either a contractual agreement or as copyright violation; depending on which side of the coin you operate.

Re:I'm trusting the summary this time

[ringman8567]

Come on now, be fair to the guy. He's only had seven weeks siince the ruling to write his summary!

Re:I'm trusting the summary this time

[geekoid]

Its to promote the progress of the arts and sciences by giving greater a avenue for financial gain.

Anyone who reads the arguments our founding fathers had over these issue would understand that.
In fact, not being able to come together on copyright is why is was left up for congress to decide later.Another remarkable amount of forethought from the signers.

Re:I'm trusting the summary this time

[Anonymous Coward]

Your concept of economics is insufficiently broad. Anything that people enjoy or appreciate in any form has real economic value.

Re:I'm trusting the summary this time

[Registered Coward v2]

Now the trial court found no copyright rights existed because copyright law is solely meant to protect economic rights.

That court has lost its way, and the appellate court's decision doesn't really correct it (though it certainly helps Jacobsen's case).

Copyright law is meant "to promote the progress of the arts and .. sciences." Anyone who looks at it in economic terms only, ignores an entire spectrum of human motivation, of which economic advantage, while important, is merely a part.

People sure as hell don't acquire things (e.g. train control software) for economic reasons ("ooh, my model train is now more efficient; I can finally crush my play-freight-delivering competitors!"), so why would economic reasons be the only motivation for producing things? It's absurd. It's also something any amateur programmer -- no, actually, any hobbyist in any field whatsoever -- would trivially understand.

I think you are confusing economic reasons with financial reasons - which are, as you stated, a part of, but not all, of the economic reasons why someone may do somethings.

Economics looks at why people do things and what benefits they gain from them; and tries to explain the links between the two. It would be pretty dismal indeed if all it looked at were financial causes; in fact some of the best economic research is around behavioral actions that result in non-financial outcomes.

Re:I'm trusting the summary this time

[Anonymous Coward]

So to summarize, this validate open source licences have merit, as either a contractual agreement or as copyright violation; depending on which side of the coin you operate.

Yeah and the same for closed source licenses. Big freaking deal.

Re:I'm trusting the summary this time

[mrchaotica]

If damages are his only remedy, however, then the court isn't supposed to grant injunctions. Even if the trial court had been upheld, that doesn't mean that open source licenses would have been invalidated, just that violating the terms of the license didn't infringe a copyright, but rather a contract.

Actually it essentially did invalidate the license, because it also held that in the case of Free Software no damages were available because the software was given away for free.

No damages -> no remedy -> effectively no license.

Re:I'm trusting the summary this time

[tchuladdiass]

What I use is: This software is available under the gpl... other license terms are available for a cost of 1 million dollars. That way, i've got a good damages claim in the case of violations.

Re:I'm trusting the summary this time

[Fulcrum of Evil]

Copyright was intended to allow people to profit from their works in order to enrich the public domain. Seeing as how that hasn't happened for some 80 years, I'd be okay with invalidating all US copyrights over the copyright limit that was active when they were created.

Re:I'm trusting the summary this time

[home-electro.com]

I fail to understand, why is this about Open Source? It has to be, primarily, about crappy patent. A patent for "controlling model trains via PC"? That's bullshit, real trains had been controlled that way for ages.

The fact that the guy actually stole the s/w is secondary, since if he just stole the s/w and did not patent it, there would be no lawsuit.

Re:I'm trusting the summary this time

[slimjim8094]

In this case, they're alleging that the other party spent about a million on his case. Perhaps a million isn't enough?

How about ... ONE HUNDRED BILLION DOLLARS? </pinky>

Re:I'm trusting the summary this time

[Anonymous Coward]

"That's a huge victory. The license on distribution of things like the GPL is based on copyright. That's a huge victory. The license on distribution of things like the GPL is based on copyright."

It looks to me like Open Source initially suffered a HUGE LOSS, but then an appeals court vacated the previous court's decision and remanded the case to be argued some more. This doesn't look like a huge victory at all. It looks more like Bruce Perens declared victory in the same way that both sides of a vice presidential debate declare victory after it's over without much actually changing.

Re:I'm trusting the summary this time

[hobbit]

Its to promote the progress of the arts and sciences by giving greater a avenue for financial gain.

Anyone who reads the arguments our founding fathers had over these issue would understand that.

Could you please elaborate with specific references? I don't see anything written by the founding fathers to support your statement.

Re:I'm trusting the summary this time

[hobbit]

It's wasn't just the decision the appeals court overturned. It was the very argument.

Re:I'm trusting the summary this time

[Pervaricator General]

Take Freakonomics' analysis of Abortion = Lower Crime as an example. For economic benefit:
Abortion => greater comfort and emotional health for mother => mother better equipped to raise child she chooses to keep it => less likelihood child will "go astray"
Clearly, there is great economic benefit to the mother to abort if ill-prepared and devoid of any emotional consequences of the abortion (Abort => Emotional backlash from self and others around you => Possibly worse off than when you started). Personally, I would prefer it if people would then include the preceding part of that chain: Choose to have sex => Decide to shoulder the emotional consequences of abortion => Abortion.

Re:I'm trusting the summary this time

[xouumalperxe]

Try seven.

Re:I'm trusting the summary this time

[mabhatter654]

typically the courts are very friendly to "community" efforts, things that are organized but not "monetary". If the trial court decision was a bad as you say, it was set up to be overturned, simply to make a precedent and take the argument off the table for good.

Re:I'm trusting the summary this time

[Tacvek]

Your post just confirms that this is the same court decision that groklaw posted back on august 13 at http://www.groklaw.net/article.php?story=200808131321242

I think I remember it getting discussed on Slashdot back then too. I did not find such an article with a quick search, and don't feel like digging through the archives for all articles from around that time, so if somebody happens to have a link to that old article if it exists, posting it would be nice.

Re:I'm trusting the summary this time

[skarphace]

Could you please elaborate with specific references? I don't see anything written by the founding fathers to support your statement.

How about the constitution? You have to infer a little bit but I don't see any other conclusion. What other ends do you see copyright providing? Recently, open source is the only new use of the law since it's inception as far as I know.

You don't need copyright when you have normal property rights.

Think about when the law started. The printing press. Copyright restricted people from making copies without permission because authors of books and publications were getting screwed out of their money.

Re:I'm trusting the summary this time

[hobbit]

Could you please elaborate with specific references?

How about the constitution?

http://www.answers.com/topic/specific

Re:I'm trusting the summary this time

[Ungrounded Lightning]

The appellate court ... recognized that an open source licensor does gain an economic benefit from releasing open source software, ... better reputation, business opportunities, and the improvement of the released software

Another gain is access to far more software than he himself contributed. Granted this is not a contingent benefit: He'd have access to most of this whether he contributed or not (though his personal contributions may result in bug fixes to his code and/or the redirection of some projects to be more to his advantage). But the total regime is necessary to set up a "prosperity of the commons", where each contributor receives much more in benefits than his personal investment.

Re:I'm trusting the summary this time

[Firehed]

The court here is simply being asked to determine whether violating an open source license agreement constitutes copyright infringement.

How could it not? All open-source licenses (that I'm aware of, at least) say that the copyright remains with the original author(s), but you have reproduction rights provided you follow X conditions. If you fail to follow those conditions, then you're in violation of copyright. It tends to be stated pretty clearly and explicitly, despite what other confusion legal jargon may be present that states those conditions.

Seems to me that any court, judge, or legal official that doesn't understand that should be in no position to make legal judgments.

Of course if you use something as liberal as the MIT license, for example, you might as well have given up your copyright. It's effectively Public Domain with Attribution. But the first line is "Copyright (c) 2008 Firehed", for example, and ended with "The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software" before the don't-sue-me disclaimer. For all of the grey area that exists within our legal system, that seems pretty damn clear.

Obviously, this varies from OS license to OS license, but as a general rule the only variation between the difference open source licenses are the conditions under which you're allowed to use/change/(re)distribute the software. They all seem to have some similar variant of the above copyright notice and warranty disclaimer. But IANAL, nor have I gone through all of the licenses word-for-word.

Re:I'm trusting the summary this time

[Firehed]

You wouldn't get damages for violating the terms of the contract directly, but not following the terms of the contract means that you are in violation of the copyright that's held by the original author(s). Open-source software is made available for free by the copyright holder provided that you follow certain conditions. As soon as you're no longer following those conditions, then the author(s) have every right to sue for copyright infringement.

Getting damages for copyright violation is another story entirely. Unless you explicitly registered your copyright (not just put a copyright notice, but actually sent a copy along with some processing fee to some government agency), the damages you can get are fairly limited. It's pretty safe to assume that almost no open-source projects have done this - maybe a couple of the really big ones that actually have some sort of revenue source (MySQL comes to mind as a possibility).

IANAL.

Re:I'm trusting the summary this time

[Anonymous Coward]

That's the point. This is outside the bounds of pure economics; economic motivation alone trivializes human accomplishment. And those that believe that anything people can enjoy or appreciate can be monetized for economic gain end up producing a society that looks like Western Europe and its offshoots. They eventually cheapen the human experience - which of course they have.

Re:I'm trusting the summary this time

[GooberToo]

Yeah and the same for closed source licenses. Big freaking deal.

It is a big deal. Before this many lawyers implied the license agreement had no legal merit and that since the code was freely given, was not subject to copyright protection. Even MS has implied such cock and bull. This cleanly highlights the license is valid and on square footing with more traditional closed source licenses.

So yes, it is a big freaking deal.

Re:I'm trusting the summary this time

[NemoinSpace]

Please correct me if/when I'm wrong, but don't be an ass

Sorry, I can either do one or the other. Just to prove my point; I think you meant PUNITIVE. :)

Re:I'm trusting the summary this time

[Anonymous Coward]

and what's wrong with you, then? She gives it to me for free!

Re:I'm trusting the summary this time

[Russ Nelson]

Silly A.C., economics is the study of choices. Money has almost nothing to do with economics.

Re:I'm trusting the summary this time

[rtb61]

Well that is just plain wrong. There are very definable damages associated with Open Source software and that is quite specifically any code that was latter attached to that used open source code in a final product is required to be made available, so the cost of the appended code are definitively lost to the open source project and in fact represent failure to make payment for use of the original base open source code.

It is all about the direct exchange of code, I am using your code on condition that I will give you my code that I have appended to your product, so an open exchange of labour. In open source code under GPL, the code is never ever given away, it is only made available for conditional use of the code, whilst the application of the code as a completed work is made freely available, the code itself is protected. So the code as an application is free to use but the code as it's source is protected.

Additionally those other people who also contributed to the acceptance of the code as a viable product must also be protected. That is those people who promoted, supported, distributed, documented, and enhanced (usability, artwork, etc.) the product, their efforts have definitive value and the work enhances the code by expending it's acceptance and increasing the ability of that coding project to further develop ie. gain additional qualitative coding input from a wider base, which benefits all those who make use of the code as a completed project as well as originating coders.

Re:I'm trusting the summary this time

[mrchaotica]

You wouldn't get damages for violating the terms of the contract directly, but not following the terms of the contract means that you are in violation of the copyright that's held by the original author(s).

No, that's exactly the idea the original court rejected, which is what I was talking about!

Re:I'm trusting the summary this time

[mrchaotica]

Well that is just plain wrong.

No shit, Sherlock! That's why the ruling got overturned!

Re:I'm trusting the summary this time

[falconwolf]

Anyone who reads the arguments our founding fathers had over these issue would understand that.

Yea, originally Thomas Jefferson was against copyrights and patents. But eventually his friend James Madison convinced Jefferson they could lead to progress. Once thus convinced Jefferson sat down with an actuary table of deaths and calculated they should last 14 years, with one 14 year extension possible.

Falcon

Re:I'm trusting the summary this time

[Tuoqui]

So Open Source Developers will be allowed to say...

Fire off shotgun lawsuits hoping to hit someone who committed infringement because there must be pirates out there. Also to send extortion letters to said pirates offering to forget taking them to court for thousands of $$$?

Oh wait that only applies to big companies I forgot, Open Source Developers are usually individuals or groups of individuals with limited funds.

Re:I'm trusting the summary this time

[sumdumass]

Not necessarily. Generally, closed source licensed stuff is purchased in a traditional sense where it imply ownership to some degree. There is still room for argument over the validity of paying $200 for something then being arbitrarily restricted on it's use outside what the laws provide.

Obviously, you wouldn't follow a click through license agreement on ford car that said you couldn't drive the car you just purchased it to work. I also doubt that no judge would allow that to stand in court either. You would however, be bound by any other laws on the books like Speed limits and titling or registration requirements. Don't put common sense down that easily.

Re:I'm trusting the summary this time

[RegularFry]

Great in theory, doesn't work in practice. Unfortunately this one has been debunked.

Re:I'm trusting the summary this time

[Bruce Perens]

Sorry for responding to this so late, I was flying back from Europe.

Consider that the target readers of my Datamation editorial - which someone summarized here on Slashdot - are not even as deep into the law as folks who have been following Groklaw for a while. Thus I tried to base the editorial on human interest to keep them reading - the nice Open Source guy vs. the Patent Troll. What the court found is (simplifying again) that 1) we aren't limited to prosecuting under contract law, and can use copyright law which has a more powerful enforcement tool-set; 2) there is economic damage connected with the infringement even when the software isn't generally sold, so we have a basis for prosecution, "standing", etc.

The main purpose of the editorial is to dispel any question that Open Source licenses can not be enforced with something like an injunction, punitive damages, etc.

Thanks

Bruce

Re:I'm trusting the summary this time

[mgiuca]

OK I've always had trouble understanding the difference between economics and finance (and commerce, but let's save that one for another day).

Are you saying "economics" is not the study of money, per se, but also any kind of perceived "benefit" and "loss" that someone can gain or lose? So if I derive enjoyment from producing software, I am making an economic gain?

Furthermore, in legal terms, when we say "copyright protects economic rights", are you saying that it protects other kinds of "benefit" besides money?

(These are actual, not rhetorical, questions).

Re:I'm trusting the summary this time

[Registered Coward v2]

OK I've always had trouble understanding the difference between economics and finance (and commerce, but let's save that one for another day).

Are you saying "economics" is not the study of money, per se, but also any kind of perceived "benefit" and "loss" that someone can gain or lose? So if I derive enjoyment from producing software, I am making an economic gain?

Yes, economics is more than just the study of money - it's also the study of why people undertake actions and how they value property, benefits and outcomes.

For example - I may chose not to sell a piece of land because I value the view more than what someone is offering in trade; whether it's cash or other property.

I would consider the happiness you get from coding an economic gain. This is not a new idea - many economists much smarter than I have applied the same ideas to many behavioral issues.

Furthermore, in legal terms, when we say "copyright protects economic rights", are you saying that it protects other kinds of "benefit" besides money?

(These are actual, not rhetorical, questions).

I would say it should - the inability to sell something you "own" does not mean you have no legal rights inherent in the property.

Re:I'm trusting the summary this time

[shentino]

Indeed.

Value isn't always measured in dollars.

Wow a truly profane injustice defeated.

[GlobalColding]

Damn good precedent set. Although, the guy who patented the other fellas work and tried to charge him for it should have been clubbed like a baby seal or dunked in a vat of whale spunk.

Re:Wow a truly profane injustice defeated.

[garett_spencley]

"or dunked in a vat of whale spunk."

That's what I get for slacking off on /. when I'm supposed to be working. Thanks :(

Re:Wow a truly profane injustice defeated.

[jeffmeden]

"or dunked in a vat of whale spunk."

That's what I get for slacking off on /. when I'm supposed to be working. Thanks :(

No *that's* what you get for choosing to work at Whale Spunk Wholesalers, Inc.

Re:Wow a truly profane injustice defeated.

[Phrogman]

Hey at least he most likely works in the IT department there, not in Production "shudder"...

Re:Wow a truly profane injustice defeated.

[halcyon1234]

dunked in a vat of whale spunk.

According to the best research I can find in as much as I dared:

1. A vat can have up to 3000L capacity
2. A whale's average load is about 5 gallons, or ~19L
3. That means about 158 "fun times" to fill the vat.
4. Even though a whale can make waves multiple times per day, let's put a practical limit of 8 times.
5. Thus, you'd need about 20 whales to achieve your vat in a day. (Assume you want fresh whale woohoo. Day old might be okay for the purposes of ickiness, but dunking might become difficult over time as it congeals)
6. Given that you won't want to lose a single drop of the deep ocean geyser to the open waters, this'll be done on land, and manually since whales can't reach otherwise.

That's a lot of Shamu Shucking! Not impossible, mind you, but challenging. You'll need a good team with strong muscles, good aim, and earplugs so they aren't driven mad by the cacophony of "ooOOOo" caused by the whalegasms. You'll also need to ensure that the whales are either sufficiently into this, or you have a good supply of whale porn on hand.

And when you're done, if you haven't found some way to make enough money off this so you'll never have to work again, then you aren't trying hard enough.

Re:Wow a truly profane injustice defeated.

[ObiWanKenblowme]

You think Production is bad, get a job on their QA team...

Re:Wow a truly profane injustice defeated.

[thephydes]

Not impossible, mind you, but challenging. You'll need a good team with strong muscles

No you won't - you'll just need forskin divers

Re:Wow a truly profane injustice defeated.

[supernova_hq]

And yet another vote to make a "-1, bad mental image" mod...

Re:Wow a truly profane injustice defeated.

[LrdDimwit]

The tidbit in this article that I found depressing? That nobody has been prosecuted for perjury on a patent application in thirty years. And why did this happen? The patent office axed the department that used to investigate this.

No wonder everything's all screwed up. There isn't even a fox there to guard the henhouse, it's just wide open.

Re:Wow a truly profane injustice defeated.

[Fyz]

Please help improve this article by adding citations to reliable sources. Especially on point 4.

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

You might want to stop and reflect on the fact that you just spent the time to put together a research abstract on the topic of vats of whale spunk.

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

Well, that's it. You have won not only the thread, sir, but the entire Internet. Good try, everyone else. Let's clean up here and all go back to using fax machines. Would the last person to log off please shut down the servers and get the lights? Thanks.

Re:Wow a truly profane injustice defeated.

[ari_j]

I think you should just trademark the term "whalegasm" and you'll be set for life, financially. You, sir, have taken the lead for Best New Word of 2008.

Re:Wow a truly profane injustice defeated.

[richardkelleher]

Or worse, new product development.

Re:Wow a truly profane injustice defeated.

[richardkelleher]

Should it be a -1 or a +1 for a bad mental image.

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

He hasn't won the thread yet. Nobody else has invoked Hitler yet. So I did, and now he's won.

Re:Wow a truly profane injustice defeated.

[Pollardito]

That's a lot of Shamu Shucking!

those of us in the industry prefer the term Flubber Fluffing

Not impossible, mind you, but challenging. You'll need a good team with strong muscles, good aim, and earplugs so they aren't driven mad by the cacophony of "ooOOOo" caused by the whalegasms.

please, everyone knows that whale ooOOOo's are subsonic

Re:Wow a truly profane injustice defeated.

[Deus.1.01]

Are you into Achewood by any chance?

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

Bad choice of words... a fox doesn't usually guard the henhouse as much as raid.

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

The patent office axed the department that used to investigate this.

The patent office axed them what? About an investigation?

Re:Wow a truly profane injustice defeated.

[Wilden2003]

I think my brain just broke. And my wife what's to know how to get this smile off my face. I'm starting to think I'm in need of a mental institution, but maybe this feeling is normal.

Re:Wow a truly profane injustice defeated.

[nahdude812]

We'll need an army of super virile whales scoring around the clock!

Re:Wow a truly profane injustice defeated.

[wiredlogic]

FYI in case you didn't know, in Japan, WS is actually used as a thickening agent for soups and the like. Mm, mm good.

Re:Wow a truly profane injustice defeated.

[Khashishi]

Someone ought to mention your work to the Ignoble Prize Committee.

Re:Wow a truly profane injustice defeated.

[Dun Malg]

Yeah..... isn't it AWESOME?

Re:Wow a truly profane injustice defeated.

[Anonymous Coward]

uh, I was eating. keyword: was

Re:Wow a truly profane injustice defeated.

[Kjella]

Can we have a "+1, Only on slashdot..." mod? Comments like this are clearly informative but...

Finally!

[CPNABEND]

A decision in favor for those that work for the common good against a single person's greed!

Re:Finally!

[LWATCDR]

"A decision in favor for those that work for the common good against a single person's greed!"
Dude it is software for controlling toy trains.
Yes I am glad that this guy got busted but lets put this into perspective. This was a little guy fighting a little guy. Good that he won but not some epic battle of good verses evil.

Re:Finally!

[MightyMartian]

I'd say, from a cursory look, it's also a victory against patent fraud, because that's precisely what this guy did.

Re:Finally!

[Spy der Mann]

Yes I am glad that this guy got busted but lets put this into perspective. This was a little guy fighting a little guy.

And the victory sets a precedent against the big guys.

Re:Finally!

[Anonymous Coward]

It isn't about the train-controlling software guy being protected that's good, it's the fact that it's setting a precedent for other software authors to be protected against the same bullshit. I doubt anyone would try to pull this with the Linux kernel but it will discourage businesses from trying to take open-source and fold it back into a closed-source app.

Re:Finally!

[Bragador]

And why would that make it less "epic"?

Softwares, lines of codes, are what will control the whole world in the future, and that is if it's not already the case.

If open-sourced code for a puny train must stay legally open-sourced, then all open-sourced code must stay open-sourced... including the most important applications that exist and those yet to come.

That train, my good friend, is the train leading us to freedom!

Re:Finally!

[LWATCDR]

I am already free.
I don't worry about people abusing the GPL. In this case the guy was a total crook and I am glad he was taken down.
I am very tired of people throwing around freedom like that. Most of them have never written a line of code at all much less put any in a GPL project.

Re:Finally!

[jo_ham]

If you read a couple of details, you'll see that the bad guy here did the following:

a) incorporated source code written by the good guy into his product
b) patented it, and claimed it was his own work
c) sent a $200,000 bill to the original author for "infringing patents"

Whether they are both small fish or not is irrelevant, what this preliminary decision does is ensure that if you release your software under an open source licence that your hard work is protected and not free and easy pickings for the fastest sleazeball to the patent office, who is in front of you in line to file a patent on your work because he spends his time stealing code instead of writing it.

Thanks to this decision, you can't claim that free software licences are invalid and that code out there under those licences is public domain and free to take with no consequence.

Re:Finally!

[Dog-Cow]

Huh? Have you forgotten SCO already?

Re:Finally!

[PunkOfLinux]

Don't need to code to contribue. I, for example, work on user manuals.

Re:Finally!

[Timothy Brownawell]

Thanks to this decision, you can't claim that free software licences are invalid and that code out there under those licences is public domain and free to take with no consequence.

You couldn't do that before, either.

Re:Finally!

[mrchaotica]

In the interval between the original ruling and the appellate ruling, you essentially could. The original ruling said that violation of the license was merely breach of contract (not copyright infringement), and that the only remedy for breach of contract was awarding (monetary) damages. But in the case of Free Software, it is given away, so there are no damages. And if there are no damages, then there is no remedy, and the code is, in fact, "free to take with no consequences!"

That's why this is big news: the original ruling was a really fucking bad ruling!

Re:Finally!

[SL Baur]

True, but ...

If someone takes a piece of GPL'ed code I wrote, incorporates it into proprietary software and sells the software without following the GPL, that's copyright infringement.

What this guy did was incorporate the GPL'ed code into proprietary software, patented the software, then sent a $200,000 bill to the original author for licensing fees due to patent infringement. That's just wrong on so many different levels.

What has happened is that along the way, the GPL now has an established legal precedent as a valid copyright license. That's important. It also establishes legal precedent to be able to go after the copyright infringer in the first example. The infringer cannot just say, "GPL means public domain. Neener! Neener! Neener!"

Re:Finally!

[hobbit]

Are you aware of how the legal system works in the USA?

http://en.wikipedia.org/wiki/Precedent

Re:Finally!

[X0563511]

I provide bug reports and testing data... when I run into problems that is.

Real-Life takes too much of my time for me to stay sane AND go out of my way to contribute to projects.

On that note... I'm looking for a project that a newbie can try to help with (code wise). I've got entry-level (as in, I can do extreme basics) with ASM (x86), C, C++, Java, Python. I would prefer to use one of the last three.

I'm wanting to learn, but I can't inspire myself to do anything useful, and it stagnates.

Re:Finally!

[LWATCDR]

Good heavens you are to blame for those!
Just kidding good for you. The manuals need all the help they can get.
How ever for the most part people that chant about free software contribute nothing.

Re:Finally!

[LWATCDR]

I did read all that and I even said that it was a good decision. I am more complaining about the spin and flag waving that is going on about it.
Yes it went right in every way. It is the statements about the common good and freedom that are driving me nuts.
It is software for controlling a toy train. It isn't a cure cancer.

Re:Finally!

[PunkOfLinux]

Even chanting about it is helpful. If 1% of users contribute, if you get ten people to use it, and they each get ten, and they each get ten, then that's 10 new contributors.

In other words, expanding the base by sheer zealotry is actually a contribution in its own right.

profit lost

[Shinatosh]

1, wait for some guy to code something cool
2, In all .c and .h files do a "s/guys name/my name/g"
3, relase as closed source application
4, PROFIT!!

Oh, wait... It does not work anymore?

Well I hope all copying, greedy suckers will learn the lesson!

Cheers

Re:profit lost

[Anonymous Coward]

If they knew what "s/guys name/my name/g" meant, they're also probably smart enough not to do that.

Re:profit lost

[slimjim8094]

So you're changing comments and then releasing a binary?

Your compiler is doing it wrong...

Re:profit lost

[Steve Baker]

That's what the bad guy in "Tron" did. As we learned from that movie, all you need to counter this is a printout of the original header with your name on it stating the bad guy stole it.

The hard part of course is being digitized, joining the program resistance movement, fighting the Master Control Program and opening the data ports to the User to get that printout. That part is a real bitch.

Re:profit lost

[Dhalka226]

It was actually worse than that. His steps were actually:

1. wait for some guy to code something cool
2. In all .c and .h files do a "s/guys name/my name/g"
3. relase as closed source application
4. PROFIT!!
5. File patents for things related to your stolen code
6. Send the original author bills for the usage of your patents.
7. PROFIT!!

Luckily his seventh step ended up being "GET SUED!!" in this particular case, but jesus, does that take balls.

Uh - has something new happened...

[Anonymous Coward]

in this case since the last time it was discussed?

http://news.slashdot.org/news/08/08/13/1857241.shtml

I agree it needs to get much more public attention than it has to date (some of the early decisions were enough to make anyone worried) but has something new happened?

Re:Uh - has something new happened...

[Hatta]

I agree it needs to get much more public attention than it has to date (some of the early decisions were enough to make anyone worried) but has something new happened?

Bruce Perens wrote an article about it.

Don't break out the champagne yet

[Daniel Dvorkin]

The higher court made a finding of fact and then sent the case back to the lower court. This is good, but it's not a clear-cut victory. What really needed to happen, IMNSGDHO, was for the higher court to find unambiguously in Jacobsen's favor and then issue a hardcore smackdown to both Katzer and the lower court judge.

From TFA:

Instead of trying to show that he did not copy Jacobsen's software, Katzer attempted to defend himself by asserting that the terms of Jacobsen's Open Source license were not valid and could not be enforced on Katzer, and that JMRI was essentially in the public domain. ... The judge agreed with Katzer.

Katzer is scum, and the judge in question is an incompetent fool. Katzer should be subject to criminal charges, and the judge should be censured if not actually removed from the bench. Anything less than that is not enough to get the point across.

Re:Don't break out the champagne yet

[TheDarkMaster]

How many money Katzer have? This will explain some questions.

Re:Don't break out the champagne yet

[orclevegam]

What really needed to happen, IMNSGDHO, was for the higher court to find unambiguously in Jacobsen's favor and then issue a hardcore smackdown to both Katzer and the lower court judge.

Damnit, when I read that my mind auto-translated IMNSGDHO, and I'm pretty sure that's a sign of some kind of mental disorder. I wonder if there's a name for it yet.

Re:Don't break out the champagne yet

[thephydes]

IANAL, but it seems to me that this is the way the law should work. A Judge does not necessarily rule in a particular way because it is right. He/She can do so, so that the case can proceed to the next level for judgment by a court with greater authority/skill/knowledge. Whether the parties take it to the next level is a matter largely for their wallets to decide - in this case, thankfully there were people ready to argue the case for free at that higher court.

Re:Don't break out the champagne yet

[mr_mischief]

I think it's called AATD (acronym automatic translation disorder).

Re:Don't break out the champagne yet

[LordHugeMongus]

IANAL, but it seems to me that this is the way the law should work. A Judge does not necessarily rule in a particular way because it is right. He/She can do so, so that the case can proceed to the next level for judgment by a court with greater authority/skill/knowledge. Whether the parties take it to the next level is a matter largely for their wallets to decide - in this case, thankfully there were people ready to argue the case for free at that higher court.

Sorry, but fair and accurate rulings should *NOT* be based on wallet size at any point in the justice system. That's just plain wrong.

Re:Don't break out the champagne yet

[Registered Coward v2]

IANAL, but it seems to me that this is the way the law should work. A Judge does not necessarily rule in a particular way because it is right. He/She can do so, so that the case can proceed to the next level for judgment by a court with greater authority/skill/knowledge. Whether the parties take it to the next level is a matter largely for their wallets to decide - in this case, thankfully there were people ready to argue the case for free at that higher court.

IANAL as well, but I think the US appellate courts do not rule on the facts in the case but rather whether the law was properly applied; so in this case they decided the judge's legal reasoning was wrong and sent the case back for review and a new decision based on their interpretation of the law.

Open source people are greedy too.

[tjstork]

A decision in favor for those that work for the common good against a single person's greed!

Not at all. The open source author's assertion of copyright is a form of greed as well. The case here is not one of greed, but of theft. The open source author's property was -stolen- by the other guy.

Re:Open source people are greedy too.

[Microlith]

But he didn't -lose- anything!

How can you call it stealing when nothing was actually lost!

Slashdot doesn't get to play semantic games just 'cause it's their pet software license.

Re:Open source people are greedy too.

[MightyMartian]

I wouldn't go so far as to say asserting copyright is greed, unless you also happen to think collecting a couple of paychecks a month for work you do is also greed. In particular, this guy is basically giving away his work (with some strings attached) by releasing via an open source license.

But you are right, this isn't so much a victory for open source, as a victory against a thief and a fraud. Even if the guy had released his work into the public domain, no one can simply patent it and then send the original creator a bill. To my mind this should have been much more than a civil case, it should have been a mail fraud case, since I'm assuming what amounted to fraudulent invoices were stuck in the mail.

Re:Open source people are greedy too.

[malkavian]

From the definition of stealing that says "to take somebody's work and pass it off as your own".
I think this fits case fits the definition of stealing quite nicely.

Re:Open source people are greedy too.

[erroneus]

You cannot steal copyrighted material. It is infringed upon. Only physical objects can be stolen.

When people put their work under an open source license, they do so with the intent and purpose of sharing. When someone infringes on that intent, it makes people angry. It's not greed as much as it is being offended and abused.

Re:Open source people are greedy too.

[samkass]

Because that's not the definition of "steal". Slashdot loves to try to assert the semantic fallacy that it's not stealing if no one loses anything.

From m-w.com:
Steal: [...] transitive verb 1 a: to take or appropriate without right or leave and with intent to keep or make use of wrongfully
Appropriate: [...] 3 : to take or make use of without authority or right

One can debate "wrongfully" in some usages of "steal", but in this case I think it's pretty clear it was "Made use of without authority and wrongfully". Thus stealing.

Re:Open source people are greedy too.

[Silicon Jedi]

You are erroneus.

Re:Open source people are greedy too.

[Sj0]

In this case, it seems like it really was theft, by most definitions.

The company patented the open source algorithms, effectively stealing the rights to the intellectual property. The original authors were deprived of the use of the code and their rights to the code, until now, where this appeal finally solved the injustice.

Re:Open source people are greedy too.

[riceboy50]

victory against a copyright infringer

There, fixed that for ya. We would have also accepted 'pirate'.

Re:Open source people are greedy too.

[illegalcortex]

The open source author's assertion of copyright is a form of greed as well.

That's the most ridiculous thing I've heard all morning, and that includes finding out that this guy tried to invoice the original author.

You seem to have redefined the word greed. Let me give you a few of the actual definitions:

"excessive or rapacious desire, esp. for wealth or possessions."

"An excessive desire to acquire or possess more than what one needs or deserves, especially with respect to material wealth"

"1. excessive desire to acquire or possess more (especially more material wealth) than one needs or deserves
2. reprehensible acquisitiveness; insatiable desire for wealth (personified as one of the deadly sins)"

Note the bolded words. The whole point of greed is that it is an extreme. Jacobsen is a model train hobbyist. He wrote some software to control model trains and gave it away free. Not only that, he took the copyright that the law gives him for such software and gave up any ability to make money off it by releasing it as GPL. In addition to that, he's not acquiring money. That's like saying that someone pointing and saying "see that free mural? I painted that" is greed. That you could someone reinterpret this as greed is mind boggling. The only reason I wouldn't say you deserve Jacobsen an apology is that he probably never read your comment.

Re:Open source people are greedy too.

[CodeBuster]

copyright and patents are limited exclusive rights granted by the government, but they are NOT the same thing as property in sense of real or physical property and thus cannot be "stolen" in the same sense that an owner can be deprived of physical property. The laws concerning property and those concerning copyrights, patents, and other grants of exclusive rights are entirely separate branches of our laws and are not covered under the criminal codes (although some copyright infringement is criminalized in some circumstances by different laws) which cover theft of property. If we want to advance the debate on copyrights and patents then we need to stop confusing the issues by adopting the terminology of the patent attorneys and the copyright cartels who always push the patents and copyrights == property concept (without basis) by using the term "intellectual property" wherever and whenever they can as part of a conscious strategy to eventually have their definition accepted by the courts (i.e. keep pushing the lie until everyone believes that it is true and has always been that way).

Re:Open source people are greedy too.

[orclevegam]

Excellent point. TFA also mentions possible perjury charges for filing what he must have known was a fraudulent patent application, deliberately trying to claim a creation date prior to the date of the work he was ripping off, and utterly failing to mention any of the copious prior art. The US patent system (and indeed almost all patent systems) are in shambles and are a complete joke in terms of fulfilling their social promise. Now that this ruling has given the OSS community (and CC as well) some teeth, maybe the *AAs of the world will think twice about pushing to have those particular legal fangs sharpened, and maybe, just maybe we'll see some patent reform as well.

Re:Open source people are greedy too.

[EasyTarget]

The problem is that the words themselves come from a time when stealing/thieving by definition meant that you deprived the original owner of the use of their property.

But copying, where the original owner still has a perfect and fully functional object.. is different.

It might still be very, very wrong, but there is a definite difference on the effect upon the property owner.

It's not wrong to emphasis this point. It's only the artificial concept of 'Intellectual Property' that has blurred the line. Our ancestors did not really care when 'Urk' stole the idea of banging rocks together from 'Grok', but they probably did care when Urk stole Groks' rocks.

Re:Open source people are greedy too.

[PunkOfLinux]

The GPL *specifically* says you can sell it. Check section 1; "You may charge a fee for the physical act of transferring a copy." It says NOTHING about 'breaking even' on CD-R.

Re:Open source people are greedy too.

[AshtangiMan]

I'd like to hear you explain this assertion a little more:
The open source author's assertion of copyright is a form of greed as well.

It seems like the copyright holder claimed copyright to keep from being charged for his own work (i.e., to ensure that his own work was kept free as in beer and speach). How is this greed?

Re:Open source people are greedy too.

[element-o.p.]

The fact that PP was modded troll just shows how much of a double standard there is on /. If filesharers aren't "stealing" music and movies then how could Katzer have "stolen" the code from Jacobsen, unless they physically removed copies of the code from his possession? If Katzer "stole" the code from Jacobsen, then how can you seriously maintain that filesharers aren't "stealing" from musicians and record companies?

What Katzer did was despicable and unethical, but it's no more stealing than downloading music from TPB -- it's a violation of license agreements.

The closest thing to theft that occurred in this case is when Katzer tried to charge Jacobsen for the code that he wrote, but I would say that is more akin to extortion than theft ("We have deeper pockets so we can afford better lawyers. Pay us now, or we'll take you to court and bankrupt you.")...but take all of this with a healthy dose of NaCl, since IANAL, etc.

Re:Open source people are greedy too.

[Hairy Heron]

Not only that, he took the copyright that the law gives him for such software and gave up any ability to make money off it by releasing it as GPL.

*facepalm* Have you actually read the GPL?

Does the GPL allow me to sell copies of the program for money? Yes, the GPL allows everyone to do this. The right to sell copies is part of the definition of free software. Except in one special situation, there is no limit on what price you can charge. (The one exception is the required written offer to provide source code that must accompany binary-only release.)

http://www.gnu.org/licenses/gpl-faq.html#DoesTheGPLAllowMoney Next time please do the two seconds of research it would take to not look like a complete dumbass.

Re:Open source people are greedy too.

[element-o.p.]

It's greedy to want to be able to give away for free code that you developed yourself so that others may use and modify it as they wish?!?! That's patently absurd.

How do you know what Jacobsen's motivations were? He *might* have wanted to develop the code so that people would admire his l337 c0d!ng skillz, but he might simply have seen a need and wanted to fill it. By standing up to Katzer, he may have been standing up for all of the others who were using his code under the terms of the open source license he used. That is most certainly not greedy but rather altruistic. It boggles the mind that you could possibly claim that something which is a community effort is greedy.

Re:Open source people are greedy too.

[slimjim8094]

He's asserting copyright to shut down a project using stolen code, legally owned by him.

The real thing is he (plantiff) gets to keep his project open, under the GPL. It's more self-preservation than theft or greed.

Re:Open source people are greedy too.

[jank1887]

A better word: plagiarism.

Re:Open source people are greedy too.

[Yath]

Looks like it's time to start clicking on "metamoderate" again.

The word "steal" has a perfectly workable definition that does not cover copyright infringement. Folks who try to muddy the situation, like those who downmodded the parent, make me angry. I hope I can slap a couple of you in metamod.

Repeat after me: copyright infringement is not stealing. It is the taking of another's property so that you have it and they don't. Stop trying to mislead people.

Re:Open source people are greedy too.

[element-o.p.]

Was this project licensed under GPL or another open source license (Creative Commons Non-Commercial, perhaps)? TFA doesn't say...

Re:Open source people are greedy too.

[e-Flex]

All possession is a form of theft.

Re:Open source people are greedy too.

[orclevegam]

Although that is indeed a valid colloquial usage of the word theft, it's not a proper usage in a legal setting (and by extension when discussing legal matters). The first response to your post is indeed correct, in a legal setting the proper term for that is plagiarism. English is a rather inexact language rife with ambiguous terms. Although this allows it a great deal of flexibility in describing abstract concepts, it also means that the burden is on the speaker to pick the most specific and concrete word possible for a given meaning, particularly in formal conversation (such as in legal matters). Even though theft can broadly be applied in this case, the more specific and therefore appropriate word is plagiarism. For an example of the kinds of legal ramifications the difference between a general and specific word can make, compare the difference between man-slaughter and murder in a legal case.

Re:Open source people are greedy too.

[geekoid]

You are correct, it wasn't stolen. You should not be marked troll.
He would have lost something: The right to control his work. His work was infringe upon, so he has rights to take recourse when someone does infringe.

Lost does not equal stolen.

Re:Open source people are greedy too.

[Anonymous Coward]

Well, at least open source cavemen everywhere can sleep soundly now.

Re:Open source people are greedy too.

[geekoid]

But you have to TAKE something. This is COPYING something.
Which is why it has it's own word and legal definition.

Re:Open source people are greedy too.

[illegalcortex]

I am fully aware of the terms of the GPL. Are you fully aware of the terms of reality? If you give away the software and make it available for free on various websites, you are in effect giving up your ability to make money by selling the software. You can add value to it, through support and extensions. But you're making the money on THAT, not on the software.

Re:Open source people are greedy too.

[illegalcortex]

I didn't say he was giving up his right to sell it, I said he was giving up his ability to sell it. The free version would effectively drive his price to zero. He might be able to sell a few copies, but in this day and age people wouldn't even pay the price of the media for something they can download for free. He would need to add value and make money on that. He's not going to make money off this.

Re:Open source people are greedy too.

[Anonymous Coward]

It's not a semantic fallacy.

"Stealing", or "theft" has a legal definition, and copyright infringement just does not meet the legal definition.

You have to deprive the original owner of something for theft to be involved. Copyright infringement does not do that.

Theft and copyright infringement are similar in some ways, but they are not legally (or morally) equivalent.

Re:Open source people are greedy too.

[illegalcortex]

It's GPL. I dug through the site to find it. But before you reply about the terms of the GPL, please read my other responses.

Re:Open source people are greedy too.

[Anonymous Coward]

From the definition of stealing that I just made up that doesn't correspond to any actual dictionary definition of the word.
I think this fits case fits the definition of stealing quite nicely.

Fixed that for you.

Re:Open source people are greedy too.

[VanessaE]

The parent may be partially wrong, but you're missing the point - I think we can all agree that the source code is the important part of a project, not the packaged binaries that usually go into distributing it commercially. From v2 of the GPL:

3. You may copy and distribute the Program (or a work based on it, under Section 2) in object code or executable form under the terms of Sections 1 and 2 above provided that you also do one of the following:

a) Accompany it with the complete corresponding machine-readable source code, which must be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

b) Accompany it with a written offer, valid for at least three years, to give any third party, for a charge no more than your cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, to be distributed under the terms of Sections 1 and 2 above on a medium customarily used for software interchange; or,

[...]

(emphasis mine)

So yeah, he can charge whatever he wants for the package, but if it's under GPL v2, the source code clearly must remain free/gratis, or at worst, break-even on the cost of the media and the labor to copy it, if any. Now, from what I can see, v3 of the GPL seems to remove that restriction:

4. Conveying Verbatim Copies.

You may convey verbatim copies of the Program's source code as you receive it, in any medium, provided that you conspicuously and appropriately publish on each copy an appropriate copyright notice; keep intact all notices stating that this License and any non-permissive terms added in accord with section 7 apply to the code; keep intact all notices of the absence of any warranty; and give all recipients a copy of this License along with the Program.

You may charge any price or no price for each copy that you convey, and you may offer support or warranty protection for a fee.

Re:Open source people are greedy too.

[quarterbuck]

The court clearly says economic damages were involved
The judge's decision was appealed in the Federal Circuit Court. A large number of Open Source projects and their attorneys, working for free, filed a "friend of the court" brief. What the appeals court found was, essentially, that the Free Software license was a license, rather than a contract, that it does not require that both parties agree before it can be binding, that its terms can be enforced, that if you violate the license you're a copyright infringer, and that violation of an Open Source license causes real economic damage to the copyright holder even though the copyright holder doesn't charge money for his software

Re:Open source people are greedy too.

[kelnos]

Uhh... what dictionary says that?

Regardless, we're talking about the *legal* definition of theft here. Webster is irrelevant in this case.

Re:Open source people are greedy too.

[Artraze]

> But copying, where the original owner still has a perfect and fully functional object.. is different.

Ah, but in this case, they didn't just copy it, they _patented_ it.

Contrary to popular believe, it is possible to steal IP rather than merely violate a legal stature (copyright, patent, etc.). While a copy is nothing more than a copy (and therefore only implies a loss of possible revenue rather than actually monetary loss), the right to produce those copies is a unique 'item' that has real value. If someone takes it, it's not yours anymore and they therefore stole it.

I suppose one could argue that IP isn't "real" because it's just your name on some paper, but then again, what's you deed? And hell, IP ownership is a lot clearer than, say, ownership of my wallet, as, after all, who's to say it my wallet anyway? It could be in my pocket 'cause I just stole it.

Point being: Don't confuse violation of IP rights (e.g. copying) with true theft of IP (a fraudulent patent in this case).

Re:Open source people are greedy too.

[kelnos]

Sigh. No, it was not theft, by any reasonable definition.

Jacobsen did not lose his copyright based on Katzer's actions. He merely lost his ability to *distribute* his code without infringing on Katzer's patent.

I don't care what "effectively" Katzer did, but in legal terms, they didn't "steal" anything.

I love how on /., when we're talking about file sharing, it's always "OMG it's not theft it's copyright infringement," but whenever an open source author is wronged, someone "stole" their work. Gimme a break.

Re:Open source people are greedy too.

[SleptThroughClass]

The problem is that the words themselves come from a time when stealing/thieving by definition meant that you deprived the original owner of the use of their property.

Well, send me the title for your car. It's just a piece of paper, and you can keep the car and continue using it. I'll just register as the owner of the car. And start sending you invoices for your use of the car. You still have the car and can continue to use it, so it's not theft.

Re:Open source people are greedy too.

[schlick]

It wasn't the material he was trying to steal, it was the copyright itself. By patenting some one else's work he was taking away the the rights of the author. Stealing is an accurate description.

Re:Open source people are greedy too.

[X0563511]

You're missing the whole point of the parent.

Re:Open source people are greedy too.

[erroneus]

Stealing is not accurate. There is another word that comes to mind that does fit: Usurping.

In any case, effectively or otherwise, it wasn't theft. It was assuming authority over something he didn't own. It was lying to authorities by claiming to have invented something he did not invent. He leveraged an ill-gotten patent as a means to leverage against a copyright.

He may have thought he was clever about it. And he was very mistaken on that fact... and he should be sued and punished for every conceivable charge both civil and criminal because this is the worst type of crime: premeditated, planned and malicious. But it was not theft. At most it was attempted theft. At no time was the original author's copyright ever taken from him.

Re:Open source people are greedy too.

[Fulcrum of Evil]

Jacobsen did not lose his copyright based on Katzer's actions. He merely lost his ability to *distribute* his code without infringing on Katzer's patent.

Sort of. He lost his ability to distribute without threat of a lawsuit; the fact that the patent incorporated the code in question and the amount of prior art unearthed in this lawsuit sort of point to the patent being invalidated. Anyway, if you deprive someone of the distribution of code they wrote while retaining the ability yourself, that looks like theft to me.

Re:Open source people are greedy too.

[Hairy Heron]

If you give away the software and make it available for free on various websites, you are in effect giving up your ability to make money by selling the software

Sure that's trivially obvious but that's not what you said. You said "by releasing it as GPL" which is completely different. Just because you license your software under the GPL doesn't equate to just giving it away for free.

Re:Open source people are greedy too.

[Khashishi]

Not greed, but self-defense. I doubt Jacobsen would've sued if he wasn't under threat of suit by Katzer.

Re:Open source people are greedy too.

[rohan972]

Stealing is a debatable description. Fraud is an accurate description. While "stealing" is commonly used to describe a broad range of things including actual theft, copyright infringement, use of ideas (stole my thunder), fraud, robbery, adultery (stole my wife) that doesn't make it an accurate description. Common != accurate.

The use of the words "stealing" and "theft" are (1) not necessary to convey the idea that a particular action is wrong or the exact nature of that action and (2) well known on /. to cause dispute when used in regard to matters of copyright and patents. To use these words in this context is really flamebait IMO, and ought to be moderated as such. It has gone past the point of merely being a difference of opinion to being deliberate antagonism.

Re:Open source people are greedy too.

[element-o.p.]

Cool.

I agree with your point in...what is it? Great grandparent post? Claiming that Jacobsen was being greedy is simply absurd. However, having said that, Jacobsen did *not* give up the ability to make money off of his software by licensing it under the GPL, since the GPL does, in fact, allow you to charge for software. The most that can be said is that he did give up the ability to *require* that *all* other users to pay him a licensing fee to use his code.

Re:Open source people are greedy too.

[Sj0]

Hi.

I'd like to point out something that doesn't get pointed out enough.

Up in the corner of this post, it says "by Sj0". It's a pretty neat nick, I think. It's a combination of the abbreviation of "Sir Jason", the first nickname I ever chose for myself when I first joined an IRC channel when I was like 9 years old, and "Sub Zero", the character from Mortal Kombat. I know, it's a bit silly, but I can't really get rid of it, it's part of me, and nothing else feels like 'my name' on the internet like SJ0.

It's a name that's been a lot of places with me. I remember back when I was still a quickbasic hobbyist. It's actually amazing how much you can do with pure QB code, but nobody really did anything because once they got good enough to write that code, they'd move to something with a real compiler. After years and years, we finally got a real compiler, the open source FreeBASIC. It was really neat because they tried to get as much backwards compatibility as possible, while adding new features. Really cool. Unfortunately, they started going down the path almost every single open source BASIC does, it's becoming a Java clone. Sort of ironic, when you think about it. QB coders moved on to more useful languages, now the programmers working on QB clone were moving the clone onto a more useful platform, but leaving behind the QB community just as the people who moved on by themselves.

It was pretty cool while it lasted though. I spent a weekend hacking FB, and I managed to get it to natively create XBox executables. Unfortunatley, they broke my port not long after I created it, but I managed to compile some of my sources, and for a few sweet hours, I had the only legal full compiler for the XBox.

Now, you may be wondering why I tell you all this. Well, the reason I tell you it is that the post doesn't say "by slashdot". I don't think I've ever seriously argued that downloading songs isn't stealing. In fact, I don't download songs, because I personally don't like the methods of the record labels, but I don't feel like stealing them either. Painting this imaginary 'slashdot' as a hypocrite is a bit of a fallacy, because the poster you're looking for doesn't exist.

Re:Open source people are greedy too.

[Artifakt]

To the people who want to turn this into theft because colloquial or non-legalistic uses of the word allow it: When somebody drives down a residential street with their radio blaring at 2 AM, should we charge them with murder? After all, as Shakespeare had it "Glamis hath murdered sleep." Common uses of a word can veer pretty damned far from the strict legal uses.
      Judges don't let somebody whip out an OED in court and make all the definitions in it count for legal matters. If they rely on dictionaries, these are specialized for the law.
     

Re:Open source people are greedy too.

[Dun Malg]

Well, send me the title for your car. It's just a piece of paper, and you can keep the car and continue using it. I'll just register as the owner of the car. And start sending you invoices for your use of the car. You still have the car and can continue to use it, so it's not theft.

Go right ahead dumbfuck, and see what the law says about the forgery and fraud you committed when you registered the car in your name without a legitimate signature from the owner. A copy of his car title in your possession deprives him of nothing until you commit a crime by using it illegally.

Fucktards and their idiotic car analogies...

Re:Open source people are greedy too.

[Artifakt]

As another example of this, let's assume I go on geekoid's land, and set fire to his or her barn. He or she loses his or her barn, so I've stolen it, right? Of course not. I'd have committed trespassing just for attempting it, and arson if I was successful, but as geekoid put it, lost does not equal stolen. There really are crimes (and torts) besides theft, people.

Re:Open source people are greedy too.

[illegalcortex]

I think you're missing my point. Ability is not the same thing as right. Ability means are you able to accomplish something or perform some task. Once he released the code as GPL and others got it, they could easily post free versions on the web. The way people in the community would find his software would be through the web. It would be highly unlikely that they would pay for his software when the same software was available for free. It's not that he doesn't have the legal right to sell his software, it's just that the competition makes him unable to do so.

Re:Open source people are greedy too.

[illegalcortex]

When I did I say GPL=just giving it away for free? Here's what I said:

He wrote some software to control model trains and gave it away free. Not only that, he took the copyright that the law gives him for such software and gave up any ability to make money off it by releasing it as GPL.

Don't you see the phrase "not only that"? First point: he gave it away for free. Second point: he released it under the GPL, giving up any ability to make money off it.

I don't see where you're getting mixed up. He doesn't have to provide free copies of binaries or anything like that. But the fact that someone could get the code and post it for free really does effectively destroy his ability to make money off it. Nothing I wrote in any way contradicts this.

Re:Open source people are greedy too.

[Anonymous Coward]

Repeat after me: copyright infringement is not stealing. It is the taking of another's property so that you have it and they don't.

Huh?

So much for the myth that people with low UIDs aren't idiots.

Re:Open source people are greedy too.

[Anonymous Coward]

theft != plagiarism

Re:Open source people are greedy too.

[kelnos]

You have an interesting definition of "theft," then, one not supported by a normal dictionary, or a legal definition (the latter of which is what matters here). I don't see "depriving one's ability to distribute software" under "theft" in there.

Re:Open source people are greedy too.

[kelnos]

Painting this imaginary 'slashdot' as a hypocrite is a bit of a fallacy, because the poster you're looking for doesn't exist.

I never said he/she does. But there's a general sentiment on Slashdot that file sharing is perfectly fine, or at least a big huge grey area, and anyone who tries to prosecute file sharers is evil.

But you turn it around, and apply the same laws to open source, suddenly there's a double standard.

I'm not saying definitively that any one person holds both beliefs: that 1) copyright infringement via file sharing is ok, but 2) copyright infringement via violating an open source license is not ok, but who cares? Slashdot is made up of individuals, but there's quite a lot of group-think going on here. Slashdot, as a community, is often pretty hypocritical. That's a fact.

Re:Open source people are greedy too.

[EasyTarget]

Thanks, that put a smile on my face, it was such a lame analogy that the smackdown was well deserved.

There never seemed a lot of doubt

[91degrees]

Most of the suggestions that GPL wouldn't stand up in court were from Free Software proponents. I always felt they were being a little paranoid. The GPL offers something (the right to redistribute the software) for a cost (the obligation to also redistribute source and any changes).

I'm surprised it got as far as court.

Re:There never seemed a lot of doubt

[somersault]

I'm surprised it got as far as court.

Perhaps the jerkoff who stole the source either didn't expect the guy to be able to prove anything, or just didn't think he'd put any money towards a court case since technically he hasn't lost any money in the first place.

I'm glad the author is standing up for what is right anyway, and hope the offeder's reputation is ruined enough that nobody will ever pay for his software again..

Re:There never seemed a lot of doubt

[somersault]

Sorry, I forgot the part where the guy who patented the product tried to get money from the actual author. He probably would have gotten away with it otherwise. He's not just a criminal - he's a complete moron as well!

Re:There never seemed a lot of doubt

[mrchaotica]

[I] hope the offeder's reputation is ruined enough that nobody will ever pay for his software again.

Personally, I hope he goes to jail for fraud, extortion, and perjury! But if you're satisfied with just his reputation being ruined, that's your choice...

Re:There never seemed a lot of doubt

[91degrees]

and hope the offeder's reputation is ruined enough that nobody will ever pay for his software again..

Sadly things don't often work out like that. Most people won't hear about this. The only thing the guy's lost at the moment is the exclusive rights to the software - something that wasn't his in the first place.

Re:There never seemed a lot of doubt

[dwye]

> I'm surprised it got as far as court.

Evidently, Katzer believed the meme that justice always goes to the highest bidder, and was proven wrong.

If he had been smart, he would have not sent the notice requiring payment to the guy whose copyrights he infringed. Then, he might have gotten away with forcing every other, unknowing, party to pay him on the basis of his granted patent, even though it was granted on the basis of a now-apparent fraud.

I don't see a decision...

[ruin20]

Maybe I'm just missing something but I don't see a decision. The preliminary ruling states that it's going to Dismiss in part, but not in whole the case.

However, it's missing key details, like will the plaintiff need to open his source code, will there be damages paid to the defendant due to the costs and burdens placed on him to defend a false complaint?

Can someone enlighten me to this please? This would be a hollow victory indeed if the court did not force the commercial software using open source to comply to the distribution guidelines in the distribution agreement. If they don't, isn't this just the invalidation of a patent do to examples of prior art?

Re:I don't see a decision...

[Zordak]

This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.

Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy. In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source.

And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice.

Re:I don't see a decision...

[gnasher719]

Maybe I'm just missing something but I don't see a decision. The preliminary ruling states that it's going to Dismiss in part, but not in whole the case. However, it's missing key details, like will the plaintiff need to open his source code, will there be damages paid to the defendant due to the costs and burdens placed on him to defend a false complaint?

The appeals court cannot itself make decisions; but it can write down what decisions the lower court should make and why and send it back to the lower court. And the lower court better follow that friendly advice or else...

In this case the friendly advice of the appeals court is that taking code that is under an Open Source license, and redistributing it without following the terms of the license, is copyright infringement. And we recently learnt that the penalty for illegally copying 24 songs, each worth about $0.99, carries a penalty of $220,000. So I'd say that Mr. Jacobson has this pleasant Mr. Katzer firmly by the balls. Mr. Katzer is under no obligation to open his source code although only that might allow him to legally sell his software in the future; it won't fix any past copyright infringement. And this is obviously a case where in Mr. Jacobson's place I would go and try to inflict maximum damage.

Re:I don't see a decision...

[Migraineman]

Additionally, the Fed court validated that "economic consideration" extends well beyond just cash. I think that's just as big an element as the condition vs. covenant item, because without consideration, there is no contract.

Re:I don't see a decision...

[faedle]

Mod parent up.

I (for whatever reason) have a couple of authors (as in, putting words on dead trees) that publish small-press. I am perpetually amazed at how many of them don't register their copyright, and believe that they are covered simply by doing the whole "put it in an envelope and mail it" thing or some other novel approach that, should it come to lawsuit time, will only nominally demonstrate when it was written in a fashion that may be subject to debate in a courtroom.

I got in heated arguments with these people about eBooks being the wave of the future, their primary complaint being the perceived ease of "theft". The two friends who balked the loudest? Neither one has registered their copyright, even after I sent them links to copyright.gov and explained the limitations of enforcing copyright without registration (such as the ability a registration gives you to automatically treble any damages, etc.)

Register your copyrights, people.

Re:I don't see a decision...

[Just Some Guy]

OK, you're not my lawyer, and this is an explicit waiver of all responsibility for the results of any actions I may take based on any further communications between us on this subject in this forum.

I don't know how else to say "I'm not paying you so can I please just ask a question and not get hedge answers. I promise not to sue." Is there a standard clause that covers our non-relationship?

Anyway, it's my birthday and I'd kind of like to register a copyright for a program I've written. Thanks for the link! I think I can spare $35 to the project. Having said that, what exactly am I registering? That is, would the registration cover previous versions of my software? Will it automatically cover future versions, and if so, is there a limit after which I must re-register? If future versions are not protected, can I submit an addendum to my original application or must I re-register each new version?

The latter case could get pretty pricy for an open source project that releases early and releases often. Microsoft can afford to shell out for XP, XPSP1, XPSP2, Vista, Vista SP1 and so on because they only come once every couple of years.

Re:I don't see a decision...

[shoemilk]

Wow, copyright law is even more fucked up than I imagined. How did we get from "promote the arts and sciences" to "fuck off if you aren't in it for the benjamins"?

Re:I don't see a decision...

[Jesus_666]

How did we get from "promote the arts and sciences" to "fuck off if you aren't in it for the benjamins"?

I thought nowadays the latter applied to all parts of society and every daily activity.

Re:I don't see a decision...

[Zordak]

A copyright registration covers just what is in the registration. To be really safe, it's best to drop the $35 to register each important release. If the changes between A and B are so minimal that if somebody infringed B, you could successfully sue based on what's in the registration for A, you may be okay just with your registration of A. In any case, put a copyright notice on everything. It's free, and it's valid, even if you haven't registered yet. Put "(C) 2008, Just Some Guy, all rights reserved" on everything you write.

Re:I don't see a decision...

[Zordak]

Actually, this decision was just the opposite. Being "in it for the Benjamins" only matters if it fell under contract law. The law recognizes "efficient breach" of contract, meaning you can (theoretically) safely breach a contract as long as you make the other party whole. For example, I agree to sell you 100 widgets at $5/ea., but somebody is so desperate for widgets, he offers me $10/ea. I sell to him instead, and because of the exigency, you have to go out and buy widgets at $7/ea. If I pay you $200, the law says you don't get to complain anymore. You got 100 widgets at an effective price of $500. The fact that I also made $300 in the deal means everybody's resources were used more efficiently.

On the other hand, as you pointed out, copyright is not to make parties "whole." It is to promote the progress of science and useful arts. So we have things like statutory damages. If you give away your program for free to everybody who agrees to an open source license, and somebody takes it and violates that license, contract theories would say you're entitled to $0 (efficient breach). But that discourages "progress." So instead, the law says, if somebody infringes your copyright, and it's registered when they start infringing, you don't have to prove any damages at all. The court can award you between $750 and $30,000 for each work infringed, and up to $150,000 if the infringement was willful (as appears to be the case in Jacobsen). Again, register your copyrights if it's important. Also, the courts are very liberal with things like permanent injunctions, even if the copyrights weren't registered before the infringement. So while $150,000 would be chump change to Microsoft if they infringed your copyright, your ability to get an injunction against their sale of Windows would certainly get their attention.

Re:I don't see a decision...

[Zordak]

And one more thing...

You can get the portion of the infringer's profits attributable to the infringed work as actual damages. So if Microsoft infringes your copyright and puts your stuff in Windows, and you can attribute 1/10 of 1% of the value of windows to your software, you can get 1/10 of 1% of their profit from Windows. Which I'm sure I could easily retire on. Again, totally different from contract, where you don't get to touch the other guy's "ill-gotten gains," because in contract, nothing is considered "ill-gotten."

So all told, Copyright is not a bad deal for the copyright holder.

Re:I don't see a decision...

[Anonymous Coward]

and what exactly do you gain from "registering" a copyright ?

[from Circular 61 on that website...]

Defnition

A âoecomputer programâ is a set of statements or instructions to be used directly
or indirectly in a computer in order to bring about a certain result.

Extent of Copyright Protection

Copyright protection extends to all the copyrightable expression embodied in
the computer program. Copyright protection is not available for ideas, program
logic, algorithms, systems, methods, concepts, or layouts.

"set of statements" ? then is that protecting the source code or the binaries ?

"directly or indirectly" might be the key...

Re:I don't see a decision...

[JAlexoi]

Actually without a registered copyright the only thing that is harder, is presenting evidence that you own the copyright. Registration does not grant or revoke any copyright protection.
IANAL

Re:I don't see a decision...

[Zordak]

You're partly right, partly wrong. Registration does not grant you a copyright; that attaches automatically. But without a registration, you cannot sue on a copyright, and if you didn't register before the infringement took place, you don't get the statutory damages and attorneys' fees (which is what I said in the first place).

Go Bob!

[Migraineman]

Man, Bob Jacobsen is fighting the good fight. If anyone has earned respect, he has.

Re:Go Bob!

[apodyopsis]

Even with lawyers donating their time and support from open source advocates this must of still cost him a lot in stress, time, money, reputation, hassle and general time lost.

For sticking to his guns and seeing this through he deserves a medal! or at least some public recognition over and above what he will get from /. and the net in general.

Re:Should?

[Millennium]

And how many should it be generating?

Face it- the US president manufactured a complete financial meltdown and two wars which will most likely last over ten years. There's also another presidential election, which may be the first federal election in over ten years which hasn't been rigged.

You forgot to mention the part where Bush is a servant of the Anunnaki sent to keep the populace in control. How can you have a good conspiracy theory without EVIL ALIEN SERPENT PEOPLE ?

A good precedent is all it takes

[Drakkenmensch]

Further cases involving open source code used in works later patented will refer back to this one. A landmark is always a good thing to have on your side.

This'll get modded down

[The End Of Days]

I agree with the decision, I welcome it entirely.

However...

The case hasn't generated as many headlines as it should.

Yeah, people in general don't care. This is a trivial detail to the world at large. The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans. Thus the reason that Open Source, Free Software, whatever, while indeed meritorious for its ideals, will never gain widespread acceptance based on them.

Re:This'll get modded down

[MightyMartian]

Yeah, you hardly ever see open source software out there. No one uses it, and no one puts it in their proprietary software distributions...

Oh wait, they do...

Just because Joe Six Pack doesn't know a damned thing about open source doesn't mean it doesn't matter to them. Just look at the untold millions that Microsoft has expended attempting to destroy it.

Re:This'll get modded down

[RAMMS EIN]

``The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.''

A vanishingly small percentage of humans that nevertheless seem to be bringing about a revolution of sorts. It used to be that companies and governments bought proprietary software or wrote their own. Now companies are grabbing open source software where they can, governments debate about open source software, and, in some places, having the source code available is starting to become a requirement.

``Thus the reason that Open Source, Free Software, whatever, while indeed meritorious for its ideals, will never gain widespread acceptance based on them.''

Perhaps not based on the ideals that some people have (I don't think any current software has ideals), but the fact that the source is available and one is allowed to modify and redistribute the software makes all the difference in some places. More and more people understand that open source means (1) you can run as many copies as you want without cumbersome and costly licensing procedures, (2) you can modify the software to your own needs and fix bugs that are plaguing you, without having to wait for anyone else, and (3) you can verify, or have others verify, that there is no nastiness in the software. Not everybody cares about these things, but the advantage open source has here is very real, and very much a deciding factor in some places.

Re:This'll get modded down

[Anonymous Coward]

The number one reason most people want/use free/open source software is that the costs associated with obtaining and running the sofware are approaching zero monetary outlay.

Re:This'll get modded down

[bigstrat2003]

Now companies are grabbing open source software where they can...

Yes. Because it's free (as in $0). There's no more to it than that. As much as open source advocates like to believe otherwise, people just don't give a damn about having access to the source code. Not having to pay for it, on the other hand, is great.

Re:This'll get modded down

[MozeeToby]

See, I think there's a different reason that this doesn't get mainstream coverage. Go ask your most computer illiterate family member if they think someone should be able to take my work that I posted for everyone to use, patent it, and then bill me for using it in my own projects. I think everyone will agree that if that's the way the law works, then the law is retarded. It doesn't get coverage because everyone assumes that the world already worked this way.

Re:This'll get modded down

[Timothy Brownawell]

The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.

How do we know this? I can see people not (directly) caring whether they can modify the software they use (heck, I usually don't care directly, because switching to something else would be easier than learning the codebase to fix it), but how in the world could they not care whether they can, um, use it? It's not like people buy/download software to just set it on the shelf and forget about it.

Re:This'll get modded down

[digital bath]

Price is surely a big part of the decision making process for any business, but it's definitely not the only part. Another very real reason that I see every day is the desire to avoid vendor lock-in. If a piece of software is open source, and the developer(s) decide to abandon the project, you can always branch the code and bring it in-house. If you went with a closed source vendor, good luck getting the source if the vendor decides to stop supporting that version of the software!

Re:This'll get modded down

[PeKbM0]

If that's the case, RedHat would have gone broke. But it hasn't.

Re:This'll get modded down

[Blakey Rat]

Just because Joe Six Pack doesn't know a damned thing about open source doesn't mean it doesn't matter to them. Just look at the untold millions that Microsoft has expended attempting to destroy it.

Are these two sentences supposed to relate to each other in some way? I mean, why does "Microsoft spending money fighting X" interest Joe Six Pack in any way, shape, or form? I'm not following the logic here.

Re:This'll get modded down

[mr_mischief]

That F/OSS is widespread and that it didn't get that way based solely on being Free or Open Source are not mutually exclusive ideas.

Most of the Free and Open Source software that has become widely used got that way by being good software with a low price tag (often, but not always, zero).

The freedom to redistribute altered code doesn't make an impact on people who had no plans to do so anyway. The fact that the software is cheap and good because other people did care is what matters to users who are not developers.

Re:This'll get modded down

[Shados]

People don't care wheter they can use it, because people don't care when you tell them they CAN'T.

Eliminate 100% (hell...just 50% would be enough) of software piracy, and they'll start caring. As long as so many people cheer The Pirate Bay and equivalents, the average joe will never give a flying duck about software freedom: they don't need people to fight for it, they can just TAKE it.

Re:This'll get modded down

[Dr_Barnowl]

It is indeed a shame ; software is an enormously influential part of the lives of most civilised nations now. It's also astonishingly powerful ; you just have to look at the financial losses chalked up to a successful virus to realise that.

Putting so much power in the hands of purely selfish entities is not a good idea. Take the trojan that encrypts your files and demands that you pay money to regain access to them. This is illegal because the user concerned did not agree to it. But their actions allowed it to happen because they are not in that small group that understands what their computer is doing.

Microsoft would love you to participate in the legal version - Trusted Computing, where you not only agree to pay to have your files encrypted in the first place, you have to pay again to be able to access them each time you buy a new computer (because you need an MS operating system and software, as anything else will not have the requisite encryption keys).

I am at a loss as to what to do about it though.

Stole freedom.

[tjstork]

But he didn't -lose- anything

Yes he did, he lost his freedom. The other guy tried to derail his project. The grant of an open source license does not mean that that is the only license that you grant. You can have multiple licenses out there.

It's pure theft, this case, pure and simple.

Re:Stole freedom.

[Anonymous Coward]

Not to nitpick, but it isn't theft. Its copyright infringement. For theft to occur the originator must no longer have access to the original property.

Although through the act of trying to use patents to shut down the source, it approximates theft. Although its probably more of an abuse of patent law in this case.

Its the same argument about file sharers. They are not stealing, they are infringing upon copyright. Theres a big difference.

Re:Stole freedom.

[orclevegam]

The GP is right, it's not theft. The ruling sets forth that violating a open source license revokes that license, and that subsequently distributing software using that licensed work is therefore done without a license and is a case of copyright infringement. As such, this guy is committing copyright infringement against the developers of the software he's using. That's not theft, it's copyright infringement, and there is a difference.

Of course, there's also the patent issue coming up here and that's a whole other can of worms. Maybe we'll get really really lucky and this whole thing will somehow invalidate software patents as well, but somehow I doubt that's going to happen.

Re:Stole freedom.

[Dog-Cow]

I am not sure if it's theft in a legal sense, but by trying to shut down the source of the code, it is a form of theft. The whole premise of "copyright infringement isn't theft" is based on the fact that the source hasn't actually been deprived of anything. The asshole who patented his software was trying to get rid of the source by abusing patent law. When I lose my own code by abusive legal action that leaves the only legal holder as the abuser, that is theft. I have lost what he has gained through his actions.

Re:Stole freedom.

[francium de neobie]

The author was *deprived* of his freedoms, and same for the legitimate users of his open source software. This is not the same as steal, however - the asshole who filed the patent does not gain the same kind of freedom as the open source community and the original author.

Re:Stole freedom.

[Anonymous Coward]

There was theft in the fact that they patented his work and tried to charge him to use it. This made it unavailable to him, which under your definition is theft.

Re:Stole freedom.

[Anonymous Coward]

What he said - so, get over it already.

Re:Stole freedom.

[Registered Coward v2]

But he didn't -lose- anything

Yes he did, he lost his freedom. The other guy tried to derail his project. The grant of an open source license does not mean that that is the only license that you grant. You can have multiple licenses out there.

It's pure theft, this case, pure and simple.

You've missed the tag in the original post.

While *I* agree with you, many here make just that argument to justify copying others copyrighted works without permission or payment.

Of course, as in everything, it's only bad when it hurts you; not when it hurts the other guy.

Re:Stole freedom.

[geekoid]

"copyright infringement isn't theft" becasue yo don't physically take something from the owner.
You distribute copies of the owners work without there permission.

Re:Stole freedom.

[kelnos]

No one is "losing their code." Nice straw man. Losing your ability to distribute your code isn't the same thing as physically losing it.

Re:Stole freedom.

[Fulcrum of Evil]

Losing your ability to distribute your code isn't the same thing as physically losing it.

Sure it is - if I can't distribute my code, I can't share it, sell it, or really do anything but run it on my box.

Re:Stole freedom.

[Artifakt]

These actions aren't theft. Theft is a single crime, in and of itself. Here we have either a tort or criminal violation of copyright, followed by what's likely to count as criminal patent fraud except the patent office doesn't seem to bother to prosecute anybody anymore. The two acts together seem to have accomplished much the same result as a theft, but:
      a. you can't automatically convert and consolidate a set of different torts or crimes into a single crime just because the results are (in some ways) similar.
      (If you could, lying to somebody to get them to accompany you somewhere else would be kidnapping, since you have the 'transport to a different locale' part of the definition of kidnapping, and lying for such a goal could well constitute fraud in most jurisdictions. In practice, kidnapping involves force or threat of force, and you can't get around that by substituting some other crime.) (If you live in a jurisdiction that has some law re. non-forcible kidnapping, that's different, but those are unusual.)
      b. you don't need to consolidate elements anyway. You can properly charge or sue the person over the two actions actually committed. If there are failures of the legal system in this case, it's that the patent fraud issue wasn't explored, or that the trial judge used a very narrow definition of economic harm that doesn't match well established common law. Both those problems should be fixed, but the fix is to deal with each of them in their own sector, not stretch the law to get something that results in a punishment WE think is reasonable despite them. Note that one of these two problems seems fixed now.

Re:Stole freedom.

[Qrlx]

For theft to occur the originator must no longer have access to the original property.

So that means Identity Theft isn't theft either?

Re:Stole freedom.

[kelnos]

So... you say it's the same thing, but then admit that it isn't, all in a single sentence? Which is it? You only get to pick one.

This is the first I have heard of this case

[erroneus]

That is a TRULY balzy thing to do -- use open source, patent it and send bills for payment to the original author for patent infringement.

This is a wilful abuse of all sorts of systems... the patent system, copyright and the legal system. A person like that needs to be billed for all the time he wasted in the government and then barred from participating the in owning patents or copyrights.

Re:This is the first I have heard of this case

[lysdexia]

Unfortunately, it's pretty unclear what could actually be *done* to Mr. Katzer in this case.

From TFA:

Jacobsen's case against Katzer is ongoing, although this most important appeal is completed. He has not yet convinced the judge that Katzer lied on his patent application, but what if he does? There has been no criminal prosecution of anyone for lying ("perjury") on a patent application since 1974, when the patent office eliminated its enforcement department.

I imagine it would be hideously expensive (and probably very intrusive to the innocents ...) to thwart this sort of behavior "before the fact" as well.

Re:This is the first I have heard of this case

[LaminatorX]

Sending people six figure bills for something you don't own and they haven't bought sounds a bit like mail fraud to me.

Re:This is the first I have heard of this case

[Anonymous Coward]

It's worse than that. Katzer (the IP thief) sent messages to Jacobsen's employer to try to get him fired from his job as a known code thief for stealing Katzer's code (the code Jacobsen originally wrote). When Jacobsen applied for a cease and desist, Katzer invoked California's anti-SLAPP law and the judge fined Jacobsen something like $40,000. That was the start of a series of rulings against Jacobsen leading to the ruling that all open-source licenses are unenforcable because the product is not sold for a profit. This finally got overturned by a higher court in the ruling which is being treated as a victory here, but the good guys are down something like 10-1.

There was another nasty situation where Katzer bought a domain name that was the name of Jacobsen's project. One of the project's users in return bought a domain name that was the name of Katzer's product. Katzer sued the user and I don't recall the details but it did not end well for the user.

The Federal Circuit and Copyright Law

[Grond]

This case may not be as strong a precedent as it appears at first glance. Bruce Perens's article, while informative, failed to mention a few important legal details, which I will try to fill in here. Please note that I am not a lawyer, and this is not legal advice.

The Court of Appeals for the Federal Circuit, where this case was heard, has a more limited jurisdiction than the regional circuits (1st through 11th and DC). Generally speaking, the Federal Circuit hears cases arising under the patent laws, and it also has jurisdiction over a hodgepodge of federal administrative law issues (veterans claims, the Merit Service Protection Board, certain government contracts, etc). In this case, the appeal was heard by the Federal Circuit because of a tie-in to patent law, though that was not the subject of the appeal.

Why does it matter that the Federal Circuit heard the case? It's important because the Federal Circuit does not set precedents for copyright law. Instead, it relies on the precedents of the regional circuit that would have heard the case were it not for whatever side issue brought it under Federal Circuit jurisdiction. Here, the Federal Circuit used the copyright precedents of the Ninth Circuit because the case originated in the Northern District of California, which is in the Ninth Circuit.

So, this case is really only indicative of what two (of twelve) Federal Circuit judges and one district judge from New Jersey thought the Ninth Circuit would do if the appeal were heard there. It is not binding precedent on the Federal Circuit, nor the Ninth Circuit, nor any other regional circuit. Different circuits often have different interpretations of the law (called a circuit split), which can often only be resolved by a Supreme Court decision. It would not surprise me if other circuits take differing views on the validity or precise nature of open source licenses.

I would not even take this case as saying much about the Federal Circuit's own views. As pointed out earlier, one of the appellate judges in this case is a district court judge who does not normally take part in Federal Circuit cases. I would also point out that the Federal Circuit is known for having a very broad range of judicial philosophies represented on its bench, with judges often writing dissenting opinions in patent cases. There is no guarantee that even another case before the Federal Circuit would come out the same way, especially if it originated in a different circuit.

All is not doom and gloom, however. Courts are notoriously conservative and reluctant to make the first move in a new area of the law. Now that there is something to hook into, it is possible that district courts and other circuit courts will make use of the Federal Circuit opinion as persuasive authority in their own decision making. Just beware that there is no guarantee that will happen.

Can someone expand on this from TFA?

[Anonymous Coward]

I've found three ways to combine any proprietary work with GPL and other Free Software, without a need to give away any source code, even when the Free part is under the new and most rigorous GPL3 license. And thus, as far as I can tell, there's never any good technical reason to break the Open Source license, because you can do anything you want without breaking the license. It just takes a working partnership with legal and engineering staff, and a few rules.

Does anyone know what those three ways are and, if so, could they summarize them? Thanks.

Re:Can someone expand on this from TFA?

[Timothy Brownawell]

I've found three ways to combine any proprietary work with GPL and other Free Software, without a need to give away any source code, even when the Free part is under the new and most rigorous GPL3 license.

Any combination? GPL template library (C++) used by proprietary code? That'd certainly be interesting to see.

Look more carefully

[Anonymous Coward]

I'm all for turning the tables on Slashdot vocabulary peeves, but in this case he really did lose something. Lacking this ruling, if he had not paid the license fee he would not be able to use his own code. Thus he would have been deprived of something he once possessed. Just because the case involves intellectual property doesn't mean that it's the same as copyright infringement.

Re:Look more carefully

[kelnos]

Bzzt -- he wouldn't be allowed to *distribute* his own code. I fail to see a way that the court could disallow him from using his own code privately, in his own home.

Yes, lack of ability to distribute would suck too, but it's by no means the same thing.

Re:Look more carefully

[Jesus_666]

We have three different things here:

1. Taking source code released under a copyleft license and using it commercially without redistributing the code. This is copyright infringement, nothing more and nothing less.

2. Acquiring a patent using someone else's work. This is plagiarism (which implies a copyright infringement).

3. Using the invalid patent to threaten the original creator. IANAL, of course, but I'd say that's fraud.


Of course, I don't know the exact definition of theft in the American legal system, but I don't think it applies here. Katzer didn't steal Jacobson's source code but rather used it without a license to (probably illegally) acquire a patent which he then tried to use to con Katzer into paying him money. Looks like copyright infringement, plagiarism and fraud to me but not quite like theft.

Just because someone intended to deprive someone else of something doesn't mean it's the same as theft.

Re:Look more carefully

[Rary]

This is plagiarism (which implies a copyright infringement).

Just a minor note: plagiarism doesn't necessarily mean copyright infringement. One can plagiarize without infringing copyright.

Re:Look more carefully

[rgviza]

Um distribution rights _is_ something that he once possessed which he was deprived of.

Theft.

Re:Look more carefully

[Jesus_666]

You're right, although in this specific case it does. I should have pointed tht out, though.

Re:Look more carefully

[QuasiEvil]

Actually it is - Bob (and more generally, the JMRI team) would have lost the rights to their own work.

Just because the other guy tried to take away rights and not the actual codebase is relatively insignificant. The fact is they would have lost rights innately granted to them as creators without agreeing to it or compensation of any sort (and arguably through deceitful means), and that's theft, plain and simple.

Yes, this logic differs from the usual piracy question. In that case, the copyright owner loses no rights, loses no source material, but is deprived of revenue owed. Hardly the same thing. (Though for reference, I'm no pirate either. My MP3 collection all has physical disks to back it up.)

Re:Look more carefully

[takev]

Because patent law not only disallows someone from distributing his own code, but also using his code and even creating his code.

This is because you can also invent/patent a machine to build gizmos. A competing manufacturer could make the same machine to also build those gizmos. Technically the competing manufacturer is not distributing the machine, because he is using it himself, but he would still not be allowed to use it under patent law.

At least that is what I understand from it.

Re:Look more carefully

[Artifakt]

If I point a gun at you, and force you to get into my car, I've deprived you of your right to freedom of movement. Ergo, by your definition, I've committed theft. If I then shoot you, I've deprived you of the life you once possessed - yep more theft. Why is it so hard for some people to see that there are other crimes besides theft?

    For that matter, why do you think there are other types of copyright violation besides criminal ones? Why is there civil copyright tort at all? Why aren't all copyright violations criminal, in other words? If it's all theft, aren't you claiming there's somehow such a thing as non-criminal theft?

      Now if this case involved actually taking the right to the work itself away directly, as part of the same acts of making and distributing the copies, there might be a way to justify calling it theft of the copyright itself, so I see how you might want to see the guilty party punished like it was a theft. But as I understand this case, instead there's actually two separate acts, committed at different times, that the law says have to be investigated by separate entities and probably prosecuted in different court systems, if they are to be prosecuted at all. The only way to get theft out of that would be to shuffle the two acts together, ignore venues, take only selected parts of both situations, and string just those parts together into a single crime.

Re:Look more carefully

[Anonymous Coward]

Why is it so hard for some people to see that there are other crimes besides theft?

The free entertainment for all crowd loves the "copyright infringement is not theft" mantra because it implies that it's OK: If theft is bad, and copyright infringement isn't theft, then copyright infringement isn't bad.

See how that works? Sure, it's logically valid, but it is incomplete.

They rarely talk about copyright infringement itself, prefering to simply state "copyright infringement is not theft".

In additition, many here have what I've come to call a "binary mindset", probably as a result of their programming backgrounds: They see everything in absolutes - ones or zeroes, true or false, right or wrong, etc.

They don't handle nuances well, or at all.

Re:Look more carefully

[kelnos]

Perhaps, but since enforcement of that is pretty much impossible, in practice, you can do whatever you want with the patented technology privately.

TAG this article, please

[TheDarkMaster]

Where is the "suethebastard" tag or "nowkillthen" tag for this? "gotcha!" is a good option too

A Link to an mp3 of the Oral Argument

[Grond]

Here is a link to an mp3 of the oral argument in this case, for the interested.

And here's the website for the law practice of the attorney who represented Jacobsen.

A link to the defendant's attorneys, who notably do not list intellectual property among their specialties. It is arguable that the defendant made a poor choice of attorney for this case.

And finally the Stanford lecturer who was the primary author on the amicus brief in support of Jacobsen.

How much did this case cost?

[twasserman]

From following the second link and looking at all of the legal filings, it appears that Jacobsen, as plaintiff, easily incurred more than $100K in legal fees in trying to assert ownership of his own work. Did those funds come out of his own pocket? If so, how many of us could afford to take on a similar fight to protect our own work?

In a timely coincidence, the film Flash of Genius is opening today. It tells the story of how Ford stole the invention of the intermittent windshield wiper from Dr. Robert Kearns, and how Kearns fought back (at considerable personal expense).

We also know that RCA and David Sarnoff stole the basic invention of television from Philo Farnsworth. It took more than 10 years for Farnsworth to win the right to royalties for his invention. Aaron Sorkin wrote a play, "The Farnsworth Invention", based on this story.

Why headlines?

[Timothy Brownawell]

The case hasn't generated as many headlines as it should.

Someone patents someone else's work and violates their copyright, and we expect massive headlines instead of a quiet smackdown?

Freedom to use software matters to everyone

[Alwin Henseler]

Yeah, people in general don't care. This is a trivial detail to the world at large. The freedom to use and modify software is simply meaningless to all but a vanishingly small percentage of humans.

People don't care because it's trivial to circumvent copyright law. Imagine if that weren't the case: where everybody would have to pay for every single piece of commercial software they use. Where the are no cracks/serials, illegal downloads or warez copied from friends available. In that situation, people would care a great deal. Commercial software prices would drop faster than the US stock market, and freeware, open source etc. would become huge overnight.

Basically, people don't care because it's so easy to ignore the law. Which, IMHO, says a lot about what average folks think about the notion (and value) of copyrights. And perhaps, patents.

Re:Freedom to use software matters to everyone

[mr_mischief]

... and laws.

Re:Freedom to use software matters to everyone

[Shados]

As the other person who answered you stated...people don't give a flying duck about laws in general. If they won't get caught, they'll break it. Only heavy criminal offense such as murder (and even then...) will not be ignored even if you can't get caught.

Re:consideration

[Migraineman]

The court handed down a ruling that "exchange of money" isn't the only form of consideration, especially in an Open Source environment:

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. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects.

So the courts appear to disagree with your assertion that he didn't "lose" anything.

Please digg this as well

[Anonymous Coward]

For those who are on Digg, please digg this story here to get the word out some more.

Was it really so earth shattering?

[NewYorkCountryLawyer]

I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.

Re:Was it really so earth shattering?

[bcrowell]

Yeah. From the article:

For a decade there'd been questions:

Well, no, I don't really think there had been questions at all. OSS licenses are bog-standard licenses that just happen to be used for unusual purposes.

Are Open Source licenses enforceable at all?

Why would this be in doubt? Nobody's ever suggested that software licenses in general aren't enforceable, and OSS licenses are built on the same legal foundations.

Are their terms, calling for a patent detente or disclosure of source code, legal?

Again, why wouldn't they be?

Are they contracts, which require agreement by all parties to be valid, or licenses, which are binding even if you don't agree to then?

Why would anyone ask this question? Of course they're licenses. What does anyone think the "L" in GPL stands for? The software involved in this case was under the Apache License (a BSD-style license). Why does anyone think it's called the Apache License?

What legal penalties can a Free Software developer employ: only token damages, or much more?

Why is this a hard question? The license is the only thing that gives anyone else the right to redistribute the software. If they aren't doing it under the license, they're infringing a copyright. Damages for copyright violation are not a legally uncertain area. In the US, anything you write is automatically copyrighted, but if you want to be able to sue infringers for more than actual damages, you have to file a registration form.

IMO, it should have been news when the lower court ruled against the author of the software: Judge Issues Bizarre Ruling in OSS License Case. It's not news when a higher court reaffirms what everyone always knew about copyright law.

Re:Was it really so earth shattering?

[gujo-odori]

"if you license something, and it's used beyond the terms of the license, that's copyright infringement."

No matter what those terms might be?

For example, what if the license says something like "This software is licensed only for use on an XYZ Brand computer" and I install it on an ABC Brand computer instead. Is that copyright infringement? For that matter, is it even enforceable? Can a vendor tell me what brand of computer I have to install its software on, and actually enforce that in court?

Re:Was it really so earth shattering?

[mr_matticus]

For that matter, is it even enforceable? Can a vendor tell me what brand of computer I have to install its software on, and actually enforce that in court?

Yes and yes.

This victory stands because of the same principles at work behind all software licensing. It says that open source licenses are exactly as enforceable as all other kinds of software licenses.

A copyright holder has the exclusive rights to make and to authorize reproduction, and to control distribution. Short of requiring something independently illegal as a condition, the copyright holder can exercise those rights with any terms he sees fit. The only way a third party (you) comes into legal possession of a copy is by complying with the terms the owner puts on that acquisition. A copyright holder has no obligation to sell anything to you; you have no rights whatsoever in the work unless you receive an authorized copy. If the copy and the distribution are not authorized by the copyright holder or expressly permitted in 107-122, it is copyright infringement.

If the copyright holder comes together with XYZ Brand and, through negotiation, sets a price for a copy based on a set of license restrictions, then lawful possession of the copy includes those conditions. It is fully enforceable in court (short of antitrust violations [independent illegality]).

You purchased a copy for a price, $x, that contemplated a set of restrictions. It is possible that a copy could be purchased without those restrictions, if the copyright holder wishes to, but at a price of $x+y. If you paid $x, you received the value of the copy and the restrictions. This is how upgrade, OEM, bundle, site license, academic, personal, commercial, and bulk licensing works--you get a different amount of use for different concessions and prices. The copyright holder may participate in any scheme they choose. It is not necessary for there to be a "term-less" edition available, though a copyright holder is free to do so.

Almost nobody does, in practice. Even the GPL has limited terms for end users, modifying statutory defaults on the issue of product warranties, liability caps, forum selection, and other matters. It has further limited terms for downstream developers and redistributors, but contrary to the idiotic belief here, the GPL does not make a distinction between "classes" of users (and the law does not, either). Whether you call it an "End User" or a "Distribution" or a "Contributory Development" license does not matter; all users are governed by the same terms, and those terms are the GPL. Its restrictions apply at all times to all users. The typical home user is not affected by those restrictions for the most part (since they're not modifying or distributing), but that's not the same thing as not being bound by them, regardless of what the paper says. A BSD license comes generally closest, imposing the fewest restrictions on the grant of rights.

Re:Was it really so earth shattering?

[gujo-odori]

>Yes and yes.

What about IBM and Amdahl?

For those too young to remember these things, once upon a time, IBM mainframes, and only IBM mainframes, ran IBM's MVS operating system.

Then, one day, a former IBM employee named Gene Amdahl starts a company that builds IBM-compatible mainframes. IBM's response to this is basically "You may have a hardware-compatible mainframe, but we're not going to sell you MVS to run on it, nyaah nyaah nyaah nyaaaaaaaah nyaaaaaaaaaaah!"

A court said otherwise, and Amdahl made a pretty good business selling mainframes that were IBM-compatible, only faster and cheaper.

Fast forward to the present day, with the IBM/Amdahl precedent, and I wouldn't be surprised to see Apple's refusal to license OS X for non-Apple computers go down the toilet if anyone with deep enough pockets care enough to take them to court on it.

Re:Was it really so earth shattering?

[mr_matticus]

What about IBM and Amdahl?

Antitrust. The IBM-compatible mainframes were useless without MVS, and, given that the hardware was not infringing on any applicable patents or copyrights, IBM had no choice.

The same cannot be said of OS X and Macs, since Macs and Mac-compatible hardware can run a variety of operating systems, from Solaris to Windows to Ubuntu to OS X.

Re:Was it really so earth shattering?

[Anonymous Coward]

The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.

[emphasis added]

Are you saying that if somebody who has a non-infringing copy goes "beyond the terms of the license", even by a type of use that wouldn't be copyright infringement if done by the owner of a non-infringing copy in the absence of a license agreement, that's copyright infringement? If so, that position isn't settled law in most circuits (and is being attacked by people like EFF).

This particular case, of course, involves the question of whether the license prevents an action from amounting to copyright infringement, not whether it causes an action to amount to copyright infringement when it would not otherwise be so if a copy were sold rather than licensed. Having read the ruling, I can find nothing that directly addresses the distinction; the following quotes (emphasis added) come closest:

Katzer/Kamind also admits that portions of the DecoderPro software were copied, modified, and distributed as part of the Decoder Commander software. Accordingly, Jacobsen has made out a prima facie case of copyright infringement. Katzer/Kamind argues that they cannot be liable for copyright infringement because they had a license to use the material. Thus, the Court must evaluate whether the use by Katzer/Kamind was outside the scope of the license.

Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the "unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright."

Hyperbole

[DragonWriter]

An appeals court has erased most of the doubt around Open Source licensing, permanently

Bull. Even Supreme Court decisions can rarely reasonably be interpreted, without some historical perspective, as doing anything permanently, but describing a mere intermediate appellate court decision this way is sheer spin and hyperbole.

legal precedent doesn't always help

[drfireman]

From the article:

Contrast that to what the defendant in a suit brought by the holder of a bogus patent faces: between $3 and $5 million dollars in legal fees per case.
Without the beneficent legal team that came to Jacobsen's aid, winning such a case is so expensive that it's really losing.

While Perens is right to be excited about this baby step, bogus lawsuits are still a pretty worrisome problem. In most cases, no beneficent legal team will come to your aid. Broadly, this has little to do with software -- Microsoft could sue some random person out of the phone book if they wanted exclusive use of his name for their next product. But the risk is obviously much greater if you develop software (free or otherwise). The shallower your pockets, the greater the risk.

You can write anything of conditions of use....

[3seas]

... and apply it to anything that can be used and so long as what you wrote doesn't break some other law, its binding. Basic Business Law 101.

How this judge came to the opposite conclusion is good reason to question the judgments the judge has made on all other cases he has prevailed over.

Re:Should?

[Anonymous Coward]

The subprime loan mess is due to relaxed lending policies which began in the 90s as an effort to increase minority/poor home ownership, although George encouraged it (ownership society). Alan Greenspan kept interest rates low to soften the .bomb bubble collapse, which lead to increased real estate speculation. Congress, aside from encouraging stupid loans, failed to provide oversight of Fannie Mae/Freddy Mac -- Chris Dodd, Barack Obama, John Kerry, all received $100k+ in donations from them -- and ignored Alan Greenspan's 2004/2005 testimony that Fannie Mae and Freddy Mac were engaging in risky behavior. And of course there were the banks that made the subprime and alt-a loans with little or no documentation. Oh, and the people that signed up for loans they couldn't afford.

I guess it's simpler just to blame it on George Bush.

Sounds like a job for...

[AltGrendel]

Mike Rowe!

Saving Open Source

[Anonymous Coward]

Michael Swaine has published a very interesting article on the Jacobsen v. Katzer case over at http://www.ddj.com/linux-open-source/210604978

Copyright Condition vs. Contract Covenant

[Anonymous Coward]

Thanks for the mp3 link.

The big part of the debate is what the specific license is: conditions based on copyright or a contract agreement between two parties.

The license in question is the Artistic License 1.0, which the justices pointed out has this in the preamble:

The intent of this document is to state the conditions under which a Package may be copied

Question answered.But Artistic License 2.0 lacks this language, as do other OSI licenses. Does this mean that we will hear this same "this is only a contract" argument again for other license?

This is a big deal: contracts allow only specific monetary damages (which often doesn't exist for gratis software)--this is one of the so-called "loophole" arguments against open source. Copyright violations can be seen as leading to irreparable harm. This leads to larger penalties, injunctions, etc.

Get your definitions straight

[Anonymous Coward]

From the definition of stealing that says "to take somebody's work and pass it off as your own".

There is no such definition.

A few legally-clueless people say things along those lines, but that's just because they're clueless.

Stealing is stealing (the person who had it no longer has it).
Passing someone else's work off as your own is plagiarism.
Copying a copyrighted work without a license is copyright infringement.

They're all very different.

PARENT IS NOT A TROLL

[mrchaotica]

First of all, he's right: it's hypocritical to call it "stealing" just because it's about Free Software, when doing so in (for example) an RIAA article would get you flamed to a crisp.

Second, this point of view is relevant: it matches the original court decision!

Re:PARENT IS NOT A TROLL

[pizzach]

First of all, he's right: it's hypocritical to call it "stealing" just because it's about Free Software, when doing so in (for example) an RIAA article would get you flamed to a crisp.

The people who argue this case isn't stealing tend to blatently ignore the patent portion of the argument instead of even trying to explain around it. It has nothing to do with it being free software in this case. The author of the code did actually lose something. In an RIAA articles we aren't talking about people taking away the rights of the publishers to publish their songs. It's an apple to oranges argument.

Re:PARENT IS NOT A TROLL

[compro01]

IANAL, but I'm pretty sure that still isn't theft, that's plagiarism and/or fraud.

Re:PARENT IS NOT A TROLL

[pizzach]

IANAL, but I'm pretty sure that still isn't theft, that's plagiarism and/or fraud.

That wouldn't surprise me. I just wish more people would say what you did instead of attempt to whore mod points or pull a rebellious "anti-group think" when it doesn't make any sense.

No. It IS a strong precedence

[dwheeler]

I disagree; this IS a strong precedence. Even when courts are not REQUIRED (by law) to consider a ruling from a particular circuit, such rulings normally DO matter.

You say: "it is possible that district courts and other circuit courts will make use of the Federal Circuit opinion as persuasive authority in their own decision making. Just beware that there is no guarantee that will happen." It's true that there's no guarantee, but the implication is overly pessimistic. It is highly likely that this ruling will influence other rulings, even if the court is not required to use it. Like any country based on common law, precedence matters in the United States. If there are no other countervailing rulings - and there are none - it's rather unlikely that this ruling would be ignored. Practically any judge will consider it very carefully if the conditions were similar.

Many courts aren't required to obey it, true, but it's MUCH easier for a judge to agree with an existing precedent, especially one that is well-reasoned (like this one is) and there are no countering rulings. Especially since this is, on its face, a pretty obvious result. I think that the lower court's ruling was wrong to start with, and this shows that the system really can correct egregious errors.

Registering copyright

[Anonymous Coward]

I've never registered copyright for anything so maybe I'm completely wrong but it seems ridiculous to have to fill out a form and pay $35 every time you want enhanced copyright protection. Think of how often we create a new copyrightable thing. Some people create new works multiple times a day.

Also, it's questionable whether the eCO system can be used to register an open source project which contains contributions from many authors. Unless the project requires contributors to assign the their copyright to the project, each author retains copyright to the code they contributed.

Re:Registering copyright

[SleptThroughClass]

You can obviously register your altered code. It's the violator's problem to grab the version before yours if they want to not steal your one-line copyright-registered change.

2 incompetent lawyers

[whitey_whiteside]

I listened to the whole hearing. The only takeaway is both lawyers are bumbling idiots, and neither actually defends their points. Somehow, all three judges are quite well spoken and down-to-earth... couldn't believe it.

For all those who are consfused on the issue, because I was, the issue the defendent is trying to defend is that there is an economic interest for the plaintiff (because copyright law doesn't cover moral/philisophical issues). The issue the defendent was trying to defend was that the open source licence (presumably GNU... they never say) doesn't hold because the terms are "covenants", not "conditions" because the plaintiff SOMEHOW (though never stated properly) doesn't reserve any rights...

The defendent's lawyer FINALLY answers their question at the very end with this (and there are no typos in my transcript)... "...if you look under california law a condition is 'an event not certain to occur which mutscht occur uhh before performance under the contract becomes due' now under that definition, these are not conditions".... WOW.

Mostly a good opinion

[deblau]

I've written a short article discussing this opinion here [PDF warning]. It's a good start, but there's a long way to go.

In *this* case it really IS theft

[Anonymous Coward]

The code was owned and copyrighted to the author.

This other guy comes along and says HE now owns the copyright. STOLEN THE COPYRIGHT. Unlike P2P where the copyright still belongs to Beyonce, you just have a free copy of the work.

Really.

This one IS THEFT OF COPYRIGHT.

Odd, eh.

For us, yes

[SL Baur]

The GPL is a unique copyright license that kind of pushes copyright law to the limits. There has always been FUD spread that it would never stand up in court. Now, it has, at least to some extent.

Re:For us, yes

[Anonymous Coward]

The GPL is a unique copyright license that kind of pushes copyright law to the limits. There has always been FUD spread that it would never stand up in court. Now, it has, at least to some extent.

The GPL was not involved in this case. The license in question was a version of the Artistic License.

Quick ! fetch me that Katzer guy

[unity100]

and my thick stick. i'll fix something that should be fixed long ago by society.

I think i lost the post

[unity100]

and a piece of my sanity at "fun times" in "That means about 158 "fun times" to fill the vat." ...

For the parent post to yours ?

[unity100]

We need a "Scrubs level funny +1" mod for that.

According to PJ at groklaw

[Anonymous Coward]

The issues are a lot more complicated than are described in his article. I assume that means that Bruce doesn't know what he is talking about.

URL:

Saving Open Source

[Anonymous Coward]

Michael Swaine has published an interesting article on Jacobsen v Katzer over at:
http://www.ddj.com/linux-open-source/210604978

Re:Hunh, Hunh! He said whale spunk!

[Anonymous Coward]

Thar She Blows!

Did Katzer actually steal the *source*?

[KidSock]

The summary reads "coded by Bob Jacobsen that Katzer used in ...". But did Katzer actually use the JMRI source code? If he did not actually copy and paste or fragments of code or entire files I fail to see why there would be a violation of the license agreement.

Yes and no.

[Anonymous Coward]

> I personally don't find it so controversial. The decision, handed down August 13th, just followed basic copyright law principles: if you license something, and it's used beyond the terms of the license, that's copyright infringement.

Right, the decision is simple and proper. That part was never really in doubt.

But you appear to have forgotten that it defeats one of the old FUD arguments about open source where they try to claim that the licenses are somehow unenforceable and we're wasting our time when contributing to open source.

Was this done on purpose?

[Anonymous Coward]

That is a TRULY balzy thing to do -- use open source, patent it and send bills for payment to the original author for patent infringement.

Exactly my thought. Who would be that obnoxious? Could it be that Katzer and Jacobsen had a pact to take the issue to court, so that it would ultimately advance open source standing?

Re:Was this done on purpose?

[BobJacobsen]

No, this isn't a sham.

Katzer really has used many different legal and illegal tactics to try to kill JMRI. There's a list on the JMRI web page, along with documentation. The purpose of the suit is to make him stop.

If he hadn't done all those things in the first place, none of this would have been necessary.

No, it doesn't .

[jotaeleemeese]

The "work" as you call it, is something intangible: ideas and thoughts (which is what programming is). By any definition you care to put forward, those can't be stolen, only copied.

Which is why there is a branch of legalese to defend the rights of creators (copyright law).

It isn't stealing, as simple as that.

[jotaeleemeese]

Slashdot likes nothing, simply lots of people here pay attention to how the word really works instead of using loaded phrases and wishful thinking.

The legal systems of most civilized nations recognize that copying the intellectual work of others is not stealing (since you can't steal something intangible) which is why you have full bodies of law an international treaties dealing with copyright.

If copyright infringement was theft then we would not have the need for a separate body of law.

Lawmakers pretty much everywhere have reached the conclusion that copyright is not theft, so people continuing to argue this point are frankly akin to creationists and flat earth believers.

why is this about Open Source?

[falconwolf]

Because one person took open source code another person wrote.

The fact that the guy actually stole the s/w is secondary, since if he just stole the s/w and did not patent it, there would be no lawsuit.

Ah but the perp, Matthew Katzer, did patent what the code was used in. He then sued the writer of the code, Bob Jacobsen. Instead of knuckling under threat of being sued Bob Jacobsen filed a counter suit claiming that by not following the open source license Matthew Katzer infringed on Bob Jacobsen's copyright.

Falcon

GPL

[falconwolf]

In open source code under GPL, the code is never ever given away, it is only made available for conditional use of the code

Not quite, the GPL puts conditions on the distribution of the software not on it's use. Users have no restriction, the restrictions are when the user modifies and distributes the code, when they distribute their modified software they have to make available the code including the code they added.

GPL = freedom for users
BSD = freedom for programmers

Falcon

Re:Wow, profane injustice defeated.... perhaps?

[Magdalene]

You *obviously* have not spent any time watching the belugas at Vancouver aquarium.

Put yourself in their fins: It gets really boring in those tanks after a while, even the windows look like a !doubleplus-good! time if you have been there long enough.