Delicious Details of Open Source Court Victory

jammag writes "Open source advocate Bruce Perens tells the inside story of the recently concluded Jacobsen v. Katzer court case, in which an open source developer was awarded $100,000. Perens, an expert witness in the case, details the blow by blow, including how developers need to make sure they're using the correct open source license for legal protection. The actual court ruling is almost like some kind of Hollywood movie ending for Open Source, with the judge unequivocally siding with the underfunded open source developer."

Comments

Victory?

[Kjella]

Over 5 years, Bob Jacobsen put in thousands of hours of work on this case. He was threatened with loss of his employment, and with all of the money and property that he had. The $100,000 he eventually received doesn't compensate him for this. But I'm sure that the feeling of achievement does.

If you count being tied up in court for five years, getting lots and lots of pro bono lawyer time and still not breaking even. I call this "How to snuff out a potential upstart for $100,000" even though he probably wasn't competition in the first place.

Re:Victory?

[Bruce Perens]

If you look at how many presentations, etc., Bob did at the recent NMRA (National Model Railroading Association) conference, he hardly got snuffed. It almost looks as if people were going to the conference just to see him.

Katzer spent a lot of money, has no product he can legally sell today (his web site currently only points to a list of articles) and his reputation is in the pits over this with anyone who might have otherwise been a customer.

But yes, anyone less tenacious than Bob would have lost, and it wouldn't have been terribly expensive for the patent holder. The patent system is so tuned to incent the bad guy that it really stinks.

Re:A few corrections to the preface here at Slashd

[Just Some Guy]

including a font license that I swear allows you to convert the font to the public domain.

Which one is that? IANAL, but I wanna play "spot the contract bug", too.

Re:A victory with a high cost...

[Bruce Perens]

It's more of a victory for you and me, because we have the benefit of Bob's court precedents. Katzer had previously intimidated at least one other person with patent threats, and Bob felt that the team could not go on with their project with this hanging over their heads. But I agree that the Open Source developer really paid, paid big, to get this. I've taken tons of s**t for what I attempt to do for the community too. You'd better believe in what you're doing, because there isn't always a thank-you.

If you read the second appeal, I don't think DMCA is a big deal in it. But if we're going to have dumb law, let's at least make it work for us. IMO worse than DMCA is the entire concept that cases like this can bankrupt someone before they have a chance to win. How can there be justice if that's the case?

Long, Long Road for an Open and Shut Case

[twmcneil]

When I heard about this ruling last week, I was shocked that this apparently open and shut case had taken so long to conclude. If I recall the details I read about years ago when this all started, it seems that Jacobsen was really being taken advantage of badly. IANAL or a judge but I would have thought this case would have taken all of 45 minutes to decide, not years.

There's something really wrong when someone like Katzer (or SCO) can so completely snow a court. The crux of both cases come down to code ownership/authorship. Is that something that just goes "Whoosh" to all judges?

Re:Long, Long Road for an Open and Shut Case

[b4dc0d3r]

If I photocopied a famous author's work and printed it with my name in the author's spot, I'd lose in a heartbeat. That's because there is an existing legal tool called "copyright" that the judges *do* understand, with an entire set of procedures and precedents.

As a judge, having no exposure to the idea of open source, creative commons, or other such issues, the only thing a judge can fall back on is the legislature and case precedence. In a simplistic sort of way, it's very easy to conclude that everyone is playing according to copyright law, because that's the only law that applies (DMCA being related to copyright).

The problem is that the normal copyright law is almost never superseded by a contract. Usually the contract stipulates who owns the copyright, not any specific terms of copyright, because copyright is made up of laws. And you can't have a legally binding contract that contains clauses which are contrary to the law. Open source licenses are basically legislation created by individuals, which a judge should regard with suspicion. They are *not* obviously entering into a contract, since no one signs or agrees to anything. It's about as enforceable as a pop-up EULA, but someone using open-source code never had to take an action to agree to an EULA in order to use the code. It's entirely possible to download source code, make changes, and never read or even notice the license file. (EULAs have been ruled enforceable, as long as they are reasonable, so I'm not suggesting open source licenses can be disregarded like people think EULAs can be).

So in the judge's head, people give things away for free and then invent arbitrary legislation to go along with it, and the end user never has to agree to follow those rules. Since citizens can't create enforceable legislation, open source developers are giving stuff away, and the most sensible conclusion is that "Open Source license was tantamount to a dedication to the public domain." Once the "bad guys" made this argument, it clicked and the gavel came down.

It was a smart argument. What the judge missed is that there was a copyright notice attached to the code (either in the header or in the code package). The whole point of copyright is that the copyright holder retains the right to copy, regardless of how it is distributed. I can have a free screening of a movie, but that doesn't mean people can film it. I can give away 20 copies of a book, but that doesn't mean I intend to give away my rights, just 20 copies as promotional value.

If you're going to ignore the citizen-created license, you have to fall back on the law, and the law says it's copyrighted unless otherwise declared.

The obvious counter-argument is a web site. CNN pays for web servers and an internet connection, basically paying money to give away content - but they aren't giving away the rights to the content, just the content. The business model is to get advertising revenue by giving away content for free, just like the TV channel. Open source doesn't have anything like that to establish it as a legitimate business model, so it's not obvious what open source exists for.

And that is the fundamental flaw the judge made, in my opinion. "... Tantamount to putting something in the public domain" assumes that since you aren't losing money, you aren't being harmed. Copyright isn't there to protect a business or business model, it's there to encourage people to create things and let them be seen - without fear that someone will take advantage of its availability. The judge's ruling, and the appellate court agreeing, suggests that business interests are seen as more important than individual rights. Maybe I'm misreading, but that's not a good sign. Good thing this guy fought the law.

Re:Long, Long Road for an Open and Shut Case

[Jah-Wren Ryel]

Would "Businessman" vs. "Hobbyist" be less objectionable?

Of course not. That a "businessman" - or anyone else - has any more default legal standing is odious because it welcomes abuse.

And to NORMAL PEOPLE, it seems unbelievable that...

Judges aren't normal people. I'm not saying they need to have expertise in every field, but what they should have is an extremely well developed set of critical thinking skills. Because if they do not have such skills, then we might as well just decide matters of law by doing sidewalk polls of "normal people."

Re:"the correct one"?

[nacturation]

Yes... from the summary:

Perens, an expert witness in the case, details the blow by blow, including how developers need to make sure they're using the correct one for legal protection.

Make sure you're using the correct expert witness.

Re:Delicious?

[raddan]

We don't need the extra precision unless our software is stealing from the boss, thanks.

Re:Believe It or Not

[trapnest]

What do you mean exactly? Android (cyanogen specifically) seems higher quality then most other open source projects.

Re:A few corrections to the preface here at Slashd

[Anonymous Coward]

The license grants you rights. If the license doesn't apply that means you don't have these rights anymore. Without a license granting you the rights you are not left with public domain but with standard copyright law, which isn't very much.

Re:Believe It or Not

[vivaoporto]

Most companies doesn't care about the best technical solution for a problem. They also take in account availability of workforce to use that particular solution, suppliers interested in working and giving support and a some other factors, like cost. Take the example you mention, the LAMP stack. PHP programmers with knowledge of MySQL are a dime a dozen, and you can filter through them to pick and choose the real competent ones. Most hosting providers already have an already optimized and time tested stack that supports these technologies, so companies can filter through them to choose the cheaper and more reliable. It gets the job done so other potential better solutions gets overlooked. Technical merit is not the only factor when choosing the right tool for the job.

Re:A few corrections to the preface here at Slashd

[oldhack]

Nice writeup.

While it may be a win of sort for Jacobsen, I don't find it an encouraging precedent for OS people.

Threats and harrassment, five years of hassle, outright fraud (copyright infringement), all that resulted in measley 100k settlement over 18 months (minus 30k Jacobsen had to fork out previously?) after several trips up and down the appeal lanes, all with probono attorney service and even some prominent OS advocates' help.

Anoyiing at best.

[LWATCDR]

Why the heck is Bruce Perens' name all over this and in the summary TWICE while Bob Jacobsen's name is only listed in the summary in case name?
It was Bob Jacobsen that paid for this case, risked his job, and wrote the software while Bruce Perens' did even go on the stand!
Here is a much better summery.

"Open source programmer Bob Jacobsen wins an historic case establishing the legal validity of Open Source Licenses ,
The court awarded Mr. Jacobsen $100,000 after years of appeals and many thousands of dollors of personal expenses.
The actual court ruling is almost like some kind of Hollywood movie ending for Open Source, with the judge so unequivocally siding with the underfunded open source developer.
Here is a link to Mr. Jacobsen's project JMRI http://jmri.sourceforge.net/ where you can read about his software and contribute to his project to show your support and gratitude for the legal fight Mr. Jacobsen fought for all of our benefit."

"

Re:"the correct one"?

[Chyeld]

I think both interpretations are correct.

Re:A few corrections to the preface here at Slashd

[Cornelius the Great]

The win here is that the case remains public so that it can be used as a precedent in the future. A sealed case would be all for naught for the OSS community.

Re:A few corrections to the preface here at Slashd

[Anonymous Coward]

You, sir, are a douche.

Did you even bother to read the article or Bruce's testimony?

Re:A few corrections to the preface here at Slashd

[Bruce Perens]

"Understood by everyone in the industry" is my job. I tell the judge if that's the case or not. As does an expert on the other side. Obviously, we often contradict each other. And then the judge has to decide which of us he trusts. So, what the industry understands is only unreliably communicated to the courts.

Re:It rather sounds as a defeat to FOSS

[Bruce Perens]

Well, it says a number of things to FOSS developers. One is that your license choice matters. This case was much longer than it should have been, and was almost lost, because of the license. Second, it says the patent system still sucks and we're not fighting hard enough. And we still need tort reform.

But it has some significant value in deterrence, for the subclass of sane aggressors. Nothing deters the other ones, the only thing you can do is to make sure your own legal execution (your license, how you accept contributions, how you identify your developers) in order so that the court doesn't make things worse.

Re:A victory with a high cost...

[Bruce Perens]

BSD, MIT, etc. are simple, but they don't give you any protection from patent aggressors. And so I am wary of using them, because it's patent suits that are the largest problem.

GPLv3, LGPLv3, AGPLv3 are the strongest within the constraints that RMS set. License not contract, no rights that you already had are restricted, etc. About 40 lawyers involved in drafting and review. Larry Rosen thinks his licenses are better for the absence of RMS. Look at both sets and make your own decision.

Re:Must be something wrong with me

[Bruce Perens]

When someone engages is these sorts of activities, there should be more than civil penalties. There should be criminal penalties as well. It is simply unbelievable.

Lying on your patent application is perjury. It hasn't been prosecuted since 1974, when USPTO discontinued their enforcement division.

I have so far had little success in evangelizing that it should be prosecuted again. If you know an organization that would like to sponsor work on that, I could use some help. I rarely can put food on the table through evangelism, and thus can't do it as much as I'd like.

Re:Believe It or Not

[GasparGMSwordsman]

There are a lot of weaknesses in your statement, but I will concentrate on one point. It appears that you are not taking into consideration the amount of time, effort and money it costs to change platforms, tech or language. Such change-over costs can be prohibitive.

First consider who would need to learn the new tech/system/language. How long would that take to bring that person up to the same level of competence compared with the old tech/system/language. In the best case scenario you are looking at a full month per employee spent doing practically nothing useful. Alternatively you could send them to take classes, usually an expensive prospect. Do you need to hire additional personnel or fire existing personal to meet the new needs?

Next consider the added complexity of using two sets of tech/system/language. Do you have two separate teams, one to work on the first combination and a second to work on the new combination? Do you cross train everyone? What support systems are in place for the old system that will need to be updated or created for the new system? What policies or procedures will need to be updated or created?

Third we have security concerns. No tech/system/language is entirely secure. In any environment where there will be a large financial liability to a security breach, it is essential that every step is taken to ensure your over all systems are secure. You have to stay on top of newly found security issues to avoid dangerous vulnerabilities. With each added tech/system/language you add more ground to cover, more possibilities for breach.

Fourth we have the issue of updating old/existing systems to use a new tech/system/language. How many scripts/modules/configuration files/documentation files/source code files/test cases must be updated or altered for the new solution to work. Not only this but testing must be done to ensure that each change has not introduced a bug and works correctly. For a large 'business solution' testing alone can consume thousands of man hours to completely ensure that the new solution preforms the same as the old solution.

All of these factors must be considered before such a change is feasible (in addition to several not mentioned). Many times the change-over costs are less than the benefit. Others the benefits of change are much lower than the cost. I can not gainsay the situations you were in or what *I* would have recommended. But to say a change is better without considering all the factors is foolish at best.

Re:So Slashdot is in favor of copyright today?

[vadim_t]

The copyright laws are a tool that can be used to different ends.

Think a hammer. When you use it to build a house, that's good. When you use it to bash somebody's head in, that's bad.

Similarly with copyright. When you use it to help spread knowledge, it's good. When you use it to stiffle expression, that's bad.

Hope this helps.

Re:A few corrections to the preface here at Slashd

[RogerWilco]

Mr. Bruce Perens,

I just want to say that I think it's very much appreciated that you spend time to not only be an expert witness in these cases pro bono, but also to discuss this at length here and elsewhere and pointing out such things as flaws in certain licences.

I'm not sure if you will read this, but I've learned that especially in the more technical professions, we do not often enough give compliments when they are appropriate.