Slashdot Mirror
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."
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.
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.
A decision in favor for those that work for the common good against a single person's greed!
My wife doesn't listen to me either...
1, wait for some guy to code something cool .c and .h files do a "s/guys name/my name/g"
2, In all
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
:)
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.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
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.
This is my sig.
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?
Oh honey look... How cute... an angry slashdotter!
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 ?
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.
I agree with the decision, I welcome it entirely.
However...
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.
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.
This is my sig.
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.
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.
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.
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.
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.
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.
Ray Beckerman +5 Insightful
Mike Rowe!
The simple truth is that interstellar distances will not fit into the human imagination
- Douglas Adams
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.
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.
This post expresses my opinion, not that of my employer. And yes, IAAL.