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

Good Guys

[arizwebfoot]

Sometimes the good guy doesn't finish last.

Believe It or Not

[eldavojohn]

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.

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 ... 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.

Re:Believe It or Not

[Bruce Perens]

I am gainfully employed in consulting companies, mostly, that are trying to cope with Open Source but still have the old mindset. That's what they have me there to fix. Of course lots of people who are gainfully employed get paid to work on Open Source today. But it's interesting, when I visit these companies, that I already know their hottest programmers - through Open Source.

Re:Believe It or Not

[Anonymous Coward]

Bruce, do you also explain to these companies that not all open source software is created equal?

I've had to deal with several large companies who see "open source" as meaning basically nothing but Linux, MySQL, PHP and Apache HTTPd. The moment I suggest using a better technology, often with a much less restrictive license, they get all uneasy.

They can't seem to understand that OpenBSD is more secure than almost any other OS. They can't understand that PostgreSQL is better at handling large data sets and heavier workloads than MySQL is. They can't understand that Ruby allows for faster and more reliable web application development than PHP does. They can't understand that nginx offers better performance and reliability than Apache HTTPd does.

Keep in mind that they are just considering the use of open source software in their operations, without actually planning on contributing back any changes. So I don't think it's a licensing problem. Nor is finding support a problem. I always provide them with a lengthy list of consultants and specialists, both individuals and companies, who I've personally worked with before and know to do top-notch work.

It's probably just a hype and marketing problem. They've only heard marketing yells of "Linux!", "MySQL!", "PHP!" and "Apache!" thrown out by various vendors and industry rags. They're ignorant of anything else.

Re:Believe It or Not

[SanityInAnarchy]

the following things actually work in Android

You didn't list a single thing that doesn't work on Desktop Linux.

the quality of an OS is not determined by how "hard coded" its "utility code" is

If you were a programmer, you'd understand that hardcoding generally does determine the quality of an OS -- if not its current capabilities, then its future capabilities. By avoiding things like that, we get flexibility -- and the flexibility of the Linux kernel is why something like Android could be written in the first place.

A few corrections to the preface here at Slashdot

[Bruce Perens]

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.

A victory with a high cost...

[ndykman]

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.

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:A few corrections to the preface here at Slashd

[Bruce Perens]

It's the SIL font license. This is the problem paragraph:

5) The Font Software, modified or unmodified, in part or in whole, must be distributed entirely under this license, and must not be distributed under any other license. The requirement for fonts to remain under this license does not apply to any document created using the Font Software.

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.

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.

These guys deserve support

[starseeker]

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.)

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:Anoyiing at best.

[Bruce Perens]

If you read the story, rather than the summary, you will find that Jacobsen is of course all over it. The summary is written by an editor who wishes you to read the story based on the credibility of a writer whom you already know, yours truly. And I am, to some extent, telling the story from the perspective of my own involvement.

I am also taking the opportunity to advertise my work as an expert witness, which I get damn little chance to do because every other case I've participated in has sealed and thus I can't show anyone my writing samples!

Sorry if that annoyed you. All of the work on the case was done for free. I get a little money from Datamation, but far from enough to live on.

Re:Precedents?

[Bruce Perens]

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.

"someone ... can so completely snow a court"

[jeko]

(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.)

Model Railroading as an "Open" Hobby

[Katyrnyn]

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.

what are you going to do about it?

[jeko]

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.