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

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.

[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.

[richardkelleher]

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

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.

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.

[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.

[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.

[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.

[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.

[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.

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?

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.

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.

[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.

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: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: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: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.

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.