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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."
Sometimes the good guy doesn't finish last.
Beer is proof that God loves us and wants us to be happy.
There were a few people that smart at Pixar when I worked there, but there seem to be tons of them in the Open Source world.
Believe it or not, your two categories are not mutually exclusive. I discover more and more that the brilliant people I am paid to work with have made improvements to open source projects. Both through work and in their free time.
... when I can attest that both are possible at once. Just be mindful of what you signed when you were hired by your employer. Some companies have terrible "everything you do even outside of work is ours" clauses. Wish the employers would realize that it's a benefit for you to experience contributing and learning from open source.
I think something the open source community could use is an adjustment of this attitude that you're either gainfully employed or working for free
My work here is dung.
It's actually the appeals court that was sympathetic. Twice. The lower court seems to have had less understanding of the Open Source developer's plight.
Using "the right one": means the right Open Source license. A real key here is getting one that had competent legal help in its drafting. There are a few real duds on the OSI list, including a font license that I swear allows you to convert the font to the public domain. Only the programmers who wrote it don't see it that way.
Sorry about the lack of paragraph breaks. I tend to write too many of them and the editor responded by using too few of them. He might have fixed that and the web cache hasn't been flushed yet.
Bruce Perens.
At the start, the open source developer got hit with a large SLAPP fine (urgh), and finally got the judgement reversed and was awarded damages, but the article notes that: "This doesn't fully compensate Jacobsen for all of his time and expense over 5 years, but it was the best he could get." So, by not using the right OSI license, the developer opened himself to years of legal hassles and woes.
Also, one wonders if by proactively suing, he ended up being worse off than by not waiting and then countersuing. Finally, it is noteworthy that since the DMCA was used on behalf of the open source developer, this may not be seen by opponents of that law as a victory at all, as it provides validation (if weak) of it's existence.
If this is victory for the little guy, I'd really hate to see what defeat is like.
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.
Live today, because you never know what tomorrow brings
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.
Dewey, what part of this looks like authorities should be involved?
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?
"The ferrets, they're every where I tell you!"
It's the SIL font license. This is the problem paragraph:
The problem is, if you embed the font, it explicitly says the license doesn't apply any longer. If you then extract the font, the authors of this license assume that the license magically applies once more. I am far from sure that is the case.
Bruce Perens.
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.
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
No, they told me that they meant that if you embed the font in a document, you can distribute the document under any license that you desire to use. But you can't sell the font separately, or convert it to another license.
That's what they meant, anyway. What it says, however, can be parsed about four different ways. So, we have to get a judge and let him/her pick one.
Good license writers make them clear enough that there aren't ambiguities in the license itself to litigate.
Bruce Perens.
We don't need the extra precision unless our software is stealing from the boss, thanks.
Jammag just wrote this submission in a hurry. It means use the right Open Source license.
Bruce Perens.
That should probably be: use the version 3 ones. There are a lot of lessons from experience in the v3 series.
Bruce Perens.
Here's the link to their donations page:
http://jmri.sourceforge.net/donations.shtml
I have to admire what these guys are doing and the good it will do for the open source community as a whole (at least in the US). I've seen this case pop up off and on over the years, and it always struck me as a scary plight for an open source developer to be in.
(Not affiliated with the project in any way and nobody asked me to post the link - I just think a slashdot effect is in order here given what they're doing and what he's been up against.)
"I object to doing things that computers can do." -- Olin Shivers, lispers.org
Interesting to note that two of the slashdot stories for today are programmers giving legal analyses of cases...
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.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
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."
"
See my blog http://ilovecookes.blogspot.com/ for light hearted technical information.
I think both interpretations are correct.
...and I can tell ya, it is not yet up to the standard of excellent OSS.
However, Cyanogen is barely part of the android community. He's clever, aggressive, and actually willing to work within the constraints, but he's also a bee in Google's bonnet. He does what they won't do, cause he caters to a smaller population of smarter users. To implement much of Cyanogen's stuff in OTA relases would require more testing, and of course trusting users like me with root. Some of us would be fine. Others would be calling their carrier and complaining about something they deleted. Well, they probably do that anyways, but for modded ROM users, we pretty much talk amongst ourselves and take the arrows.
Android is moving so fast it will take a while to settle down and get excellent. And then something else will come and take its place on the bleeding edge.
deleting the extra space after periods so i can stay relevant, yeah.
Aww, such a cute little troll. Yes you are. Yes you are! Does my little Trolly need attention?
Property is theft.
It went to appeals court twice and the appeals court ruled both times, then handed the case back to the lower court. The main precedents come from the appeals court.
That's the way it always is. Lower court precedents aren't terribly useful because only that court has to follow them. Appeals court precedents are more valuable, and the appeals courts are more respected as expert jurists so that other courts follow them even if they don't have to.
The precedents are that Open Source licenses can be enforced, and with all of the mechanisms that have been put in place to enforce proprietary licenses, including summary judgement. To get that, we had to show that the Open Source developer has an economic interest in his work even though he isn't paid by legitimate licensed users of the work, and is harmed by an infringer even though he isn't paid.
To you and me it seems odd that anyone had a problem with that idea. But we're inside the revolution.
Bruce Perens.
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.
Sigs are for losers
"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.
Bruce Perens.
Yeeeesssss...I'm seeing Matt Damon as the earnest geek who refuses to back down, James Gandolfini as the litigious scumbag, and Brent Spiner as 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.
Bruce Perens.
Thanks, that kind reply really means a lot to me. But my guess is that it's not really the subject matter per se that is complicated for me here ; rather, I believe it's my poor grasp of the English language that is the problem. Stating that " ... The case was not sealed like so many settled cases ... " at the top of your article falsely led me to believe that this case was also settled - just not sealed.
(I'd like to deeply, deeply apologize to Perens, Jacobsen and all the other People of Virtue who worked on this case for the wet blanket I'm about to throw. God knows you all deserve better.
I'm sorry, I'm so sorry, and here goes...)
You should never attribute to malice what can adequately be explained by stupidity.
But no Court is this stupid. At some point you have to concede the problem is corruption.
Katzer's outright theft is painfully obvious. It took $30,000 up front and five years of legal wrangling. WORLD CLASS MINDS had to engage on the side of the good guys. Look at the outcome.
$100,000 over 18 months and future disputes are sent to arbitration.
$100,000 does not even begin to cover the legal costs of the angels here. If the good guy attorneys hadn't been working pro bono, our Hero would still be in ruinous debt. If not for the amazing charity in this case, Jacobsen's victory would be declaring bankruptcy. $100,000 probably doesn't even put a chip in the profits Katzer made by his theft. $100,000 isn't even $100,000 since it's being paid over time, which means the real net present value is less.
Worse, "Both parties have agreed to ... arbitration." Do some googling on modern arbitration. It's so blatantly rigged you can't even properly call it a fraud. Corporate interest prevail over the little guys in something like 98% of all cases, and the remaining two percent get such token amounts you can't legitimately call it a "win." Katzer is free to pull some heinous new stunt tomorrow -- like filing entirely new patents claiming ownership of Jacobsen's work -- and he can remain comfortable in the knowledge that he has a 98% chance of getting away with it.
"Aw, shut the Hell up, man. We got the precedent and that's what really counts."
Really? A precedent that costs $30,000 up front to try to use?
"Dude, seriously, STFU. We're making incremental progress towards a larger victory here. FOSS is gaining legitimacy in the legal world, and that's what really matters."
I know. I've been hearing that for 20 years now. After twenty years of gaining legitimacy, it still only takes five years, two appeals and a team of pro bono attorneys to recover a token amount of somewhat less than $100K and a decision that all future disputes will be resolved in the favor of the bad guys. We're making wonderful progress. A few more such victories and we'll be lost.
"Frackin' Hell, man, what the frack is your problem?!"
My problem is that I want everyone else to come to the same excruciating conclusion I have. The System has a horrible bias in favor of the rich and powerful. The System will go out of its way to screw the weak and defenseless. That by Bruce's own admission, the System will take a tool like SLAPP, expressly designed to level the playing field, and use it to deny justice to those not rich enough to afford it. If Jacobsen hadn't had an extra $30,000 laying around, this case would have been over before it began.
Justice is no longer blindly weighing merits, but is instead whoring herself out to the highest bidder. I want to change that, and we can change that when enough of my fellow citizens begin to understand just how corrupt things have become.
But wearing rose-colored lenses and seeing this as a "victory" doesn't help us. Jacobsen and company had to wage a heroic, epic battle for a very. very tepid victory. The real costs of his case weren't covered, he hasn't been made whole for the time he lost, Katzer kept his profits and is still out there free to start stealing again tomorrow.
We shouldn't be celebrating this outcome. It doesn't vindicate the Courts.
It indicts them.
(And again, my sincerest apologies and deepest thanks to the wonderful people who fought this fight.)
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
I tend to agree with you. The only relevancy to Open Source I found in the entire article is that the court ruled that an Open Source license was not the same as public domain (a ridiculous argument the patent holder tried to make). The rest of the article is just more David vs Goliath, with the Open Source angle being completely irrelevant.
"This code is free to redistribute, so long as no mention of the author is made. Leaving the credits attached will revoke the license."
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.
Bruce Perens.
The outcome of this case is beneficial both for Open Source Software community and the Model Railroading hobby.
In general model railroading is a very open and diverse hobby. Some are better with structural engineering and carpentry, others with electronics, model building, methods of railroad operation, et cetera. As a community we work together to share and improve our techniques, both to improve ourselves as modelers and to increase our satisfaction from the hobby. There are many well established venues for sharing our knowledge, from regular conventions (NMRA National, Regionals, and plenty of Special Interest Groups), a large number of printed an online periodicals, online communities, and just general "how did you..." questions at any old time.
Unfortunately our openness attracts thieves and greedy sorts who are more interested in making a quick buck than improving the hobby, and manufacturers and other entities attacking hobbyists is nothing new. I imagine this greedy nature is present in all hobbies and walks of life, but it seems to be more common now than when I entered the hobby 20 years ago.
Hopefully the outcome of this case will make others that prey on innocent hobbyists think twice.
Thanks, Bruce, for your well-written summary of the case. I'd mod your article up +1: Insightful if the Internet gave out mod points.
I dti'r na ndall is ri' fear na leathshu'ile.
With respect, I'm not a cynical college kid who just discovered nihilism, Bruce. I have children, so I fear for the future. I speak. I write. I vote. I'm up for anything short of flying a plane into a building. You got a hill you wanna take, General Perens, I'll be there.
I began my life as a homeless kid. I've had a miraculous outcome, built a life against all reasonable expectation; college, wife, kids. But as good as my life is -- and it is good -- I am embattled on all sides. I am fighting the good fight -- and I will proudly go down fighting the good fight -- but I can see the battlefield.
I paid for my own education. I went into a lucrative, practical, growing field. I have watched salaries and opportunities plummet. I know that chances are good I'll be declared too old to hire before my hair even goes grey. Looking back, I would have been better off skipping college and becoming a plumber.
There is a medical issue that has wiped out my family's finances. I have insurance. Insurance has been worse than useless. There are databases filled with other families in the exact same trap. We make a lot of noise, but we're not making much progress.
I'm lucky. My kids' school is filled with idealistic teachers doing all they can. The problem is they're doing all they can with the proceeds of a can recycling drive. They're gonna go down fighting the good fight too, and gallows humor pervades the place.
For the first time ever last year, I saw a financial analysis that argued college was not worth it, especially if you had to pay for it yourself. Worse still, I couldn't refute it. What path do I offer my children when even education is a losing proposition?
I've traveled. I've seen the Third World. I know where we're heading. I'm desperately hoping my fellow citizens can quit hitting the Fox News crack pipe long enough to notice our city bus just went off a cliff.
What am I doing about it, Bruce? I'm standing on the walls of the Alamo, firing steady and sharpening my Bowie knife. I'm hoping in the future fat tourists in cotton shorts come to gawk at my heroic remains. I'm hoping my stand here gives General Houston time to run. Gregory Bloody Peck better play me in the movie.
But I'm pretty sure I know how this chapter's gonna end. And like I said, I'm a man with kids. So I'm OK with that.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
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.
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.
RogerWilco the Adventurous Janitor