Open Source

A big legal victory for open source

A small legal victory was won by an open source developer that will have lasting effects on the entire open source development community. Jack Wallen explains.

Many of you may not realize it, but a large victory for open source software was won February 19, 2010. The case, at first blush, seemed very simple. A software developer (and member of the Java Model Railroad Interface Project), Robert Jacobson, had created a piece of software released under the GPL that the defendant (Matthew Katzer - owner of a proprietary model train controlling software KAMIND) ripped off. Not only did the defendant rip off the code, he removed all mention of authorship for the original code and stripped away the copyright notice. Of course the removal of the copyright was a violation of the Digital Millennium Copyright Act...so legal precedent was present.

The original patent claim Katzer made against Jacobson was in 2004. The case dragged on quite some time (for all the details you can visit the Wikipedia entry for Jacobson v. Katzer). And although this was a big  win for Jacboson, the long-term effects for F/OSS could be bigger. Why? Precedent.

Our court system runs on precedent. A precedent is a prior legal case that a court uses as a reference when deciding on a current case. One of the biggest issues facing open source software was that there was no precedent to fall back on. Now there is. Now the open source licensing model stands up in a court of law and is legally entitled to copyright protection.

What this does, IMHO, is that it gives businesses and developers a security they didn't have prior to the verdict. And because this case eventually went to U.S. Federal Circuit Court of Appeals, the ruling was binding in all district courts underneath the U.S. FCCA.

What started as a small victory for a model railroad aficionado and developer became a huge victory for an entire community of developers. How? The GPL is valid in a court of law. You can develop your software now, release it under the GPL, and know the U.S. Federal Court has your back. This small victory will ensure big companies no longer pilfer various GPL codes, place them into their own code, and get away with the crime. Now they will pay.

Although I hope this doesn't turn into a coup, with open source developers scrambling through other codes to try to find violations, I am thrilled the open source community can now continue their work with actual legal protection waiting for them in the wings. This ruling has been a long time coming. This victory is deserving. Thank you Robert Jacobson for fighting for your rights and for the rights of open source developers across the globe.

About

Jack Wallen is an award-winning writer for TechRepublic and Linux.com. He’s an avid promoter of open source and the voice of The Android Expert. For more news about Jack Wallen, visit his website getjackd.net.

33 comments
pmshah
pmshah

Now would be the time to look at all the M$ code and see how much they have pirated. I distinctly remember using a lot of copyrighted freeware external dos utilities that ended up in the next version of dos.

NickNielsen
NickNielsen

The CAFC is the court that hears patent and trademark appeals from all federal circuit courts. The bad news: if those appeals are based on counterclaims by the defense, the Supreme Court has ruled the appeals may be heard by the circuit courts of appeal. http://supreme.justia.com/us/535/826/case.html But it's a start.

emenau
emenau

... GNU made this happen...

The_Dragonlaird
The_Dragonlaird

Interesting that the article author claims this is a big win for Open Source. Personally I have to disagree since Federal Courts have no bearing/impact on any actions taken in other countries and hence, the only people this ruling affects are developers within the U.S. :-(

tech10171968
tech10171968

I think this really is a big victory for open source, but in another sense: imagine being an OSS developer yourself. If the verdict went the other way, allowing corporate entities (or anyone else for that matter) to just come in and just swipe your code, claiming it as their own creation and releasing the software without even sharing the source, don't you think that would be a huge disincentive against devs continuing to work on F/OSS software? Despite that fact that OSS tends to be a labor of love for most of these devs I would think, if a company were going to nick the code and profit from the developers' hard work, those devs should at least get the credit and the GPL should indeed be honored (resulting in beneficial changes being released to the community). This just looked like another case of a company trying to benefit from free labor from the community, claiming the result as their own.

bluetech007
bluetech007

If you release it open source you should honestly, release it without caveat over copyright or use otherwise its not that open source, honestly if you release code your smart enough to write but not smart enough to make big money from then hey that's what you choose to do - if you want to make money from it release it proprietary and closed source and sell it.

heres_johnny
heres_johnny

This is a big victory for OSS in the short term. Both parties agreed not to sue each other for 10 years, but may decide to lawyer up after that term and go at it again. Some cojones by Katzer, though: he stole the JMRI software, stripped all ownership and copyright notices from it, patented it, and then SUED Jacobson for copyright infringement. What a d-bag.

seanferd
seanferd

Apparently, you do as well.

rowanwilson
rowanwilson

Hi... just a quick correction: the software was under the Artistic License when the infringements took place.

dougogd
dougogd

that was open source they would be out of business. That is the reason for some of the above things going on today. Everyone should sue Microsoft for everything they stole and put in their operating system. I wish they would. An operating system should be free with the computer as part of the hardware. Unless someone knows another way to run a computer. edited to make it make sense.....

Neon Samurai
Neon Samurai

"Get this: they are trying to lobby the US government to equate encouraging the use of Free and open source software to undermining intellectual property rights, and to weakening the software industry." "The International Intellectual Property Alliance is an umbrella group for organisations like the RIAA and the MPAA, but it also covers publishing, television, and software." http://www.osnews.com/story/22921/US_Copyright_Lobby_FOSS_Weakens_Software_Industry_ So, while the court system may have made a small adjustment, the lobby groups are in full swing to reverse it plus some. They want countries that premote FOSS adoption to be listed (301 list?) along with companies known to turn a blind eye to copyright and patent infringement. It must have been "let the staffer with the most brain damage decide on this year's strategy" day.

ScarF
ScarF

It may be useful in the legal systems based on common law. Not for the ones based on civil law. Even in the USA and Canada are exceptions: Quebec and Louisiana. And, as a personal opinion, a legal system based on precedents is as stupid as can get, ending to protect stupidity - and to give a good living for an army of lawyers. A precedent for this was created by Liebeck vs. McDonald's. But, again, this has nothing to do with the case presented by the blogger. Fact is that the OSS code can be - and is - used in commercial applications, without the knowledge of the original author. The problem is not necessary who protects the developers when a copyright breach is found but, who finds the breaches. Who stays all day long to monitor all the applications written in this world against including OSS code? Eh?

john.morrison
john.morrison

Many companies routinely ignore copyright, especially with shell scripts, and will routinely strip the copyright and other nomenclature from it, to re-package and claim as their own work. While most aren't expecting to profit directly from these scripts, ownership and the protection from liability are expected to be protected, as per OSS model. Even a little credit for creating them would be nice!

dougogd
dougogd

some people do that so someone else can't put it with their software and make big bucks off it without giving them credit, making it known that they can create good software, and making it easier for them to find a job.

Deadly Ernest
Deadly Ernest

your code to make money, then they should be paying you for it. Most open source coders release the code for use free to all, on the grounds that any and all software you incorporate their code into is also released free to all. So you can use the code and give it away free - the problem is when you want to sell what you've built using their code as the base, if you want money for it, then you should also pay them for it.

AzuMao
AzuMao

If you release your code under the GPL you are allowing people/companies to use it, change it, modify it, sell it, or even merge it into their own program. The only things you aren't allowing is for them to make it no longer be under license you gave it to them under (the GPL), and for them to say it isn't your code.

Realvdude
Realvdude

Katzer's claim was for the server/client functionality of the JMRI project, where is the JMRI claim was for the decoder portion of Katzer's product.

dougogd
dougogd

I would say that if open source is a copyright problem so is every other copyright whether it private or open. The only thing about open source it requires the user to post the original writers info and businesses want everything to themselves. But if they charge for it they would have to pay a portion to the original writer. That is why it is a problem.

Neon Samurai
Neon Samurai

I just check the technology blog linked from the osnews article: "Guadamuz has done some digging and discovered that an influential lobby group is asking the US government to basically consider open source as the equivalent of piracy - or even worse." Wow.. just.. wow..

Aaron Mason
Aaron Mason

What you say is true, however the license doesn't require you to do it, and I am actually glad for that. I think demanding money in return for using free code for profit is counter-intuitive at best. True, you won't make many friends in these communities if you sell their (or others') free code (and if you do, they'll only like you for your money ;)), but I think that to give back to the hand that feeds you is the Responsible Thing To Do(TM). (TM) = This statement is an unregistered trademark of the world. Nay, the universe. Use it, abuse it, do whatever.

seanferd
seanferd

One person can't then take the OSS code, copyright/patent it, and then sue the original creator. That would be why you "worry" about it, right?

Aaron Mason
Aaron Mason

Please tell me this is sarcasm - because it appears to me to be blind-sightedness. What you describe is exactly the reason why we need open source licensing. It prevents ideas from being "stolen" by placing a license that prevents it from happening. It means credit goes where credit is due, and thanks to this court case we have a precedent that states this. That said, I do agree that GPL makes it near impossible to integrate code licensed as such into other projects - partly due to the fact that anything you add to it is automatically GPLed and hence requires the source to be shared. That's why the BSD license is favoured these days - it allows ideas to flow to everyone. Hence the Windows 2000 TCP/IP stack - it was made available thanks to the tireless work of a number of hackers who rewrote the TCP/IP codebase (and the rest of BSD codebase) that belonged to AT&T, and freed the entire codebase for anybody to pick from (http://www.openbsd.org/lyrics.html#44).

Neon Samurai
Neon Samurai

It threatens the companies monopoly on ideas. The GPL is probably one of the most restrictive OSS licenses and all it says is that source and changes must be made available if one's product includes it. There is nothing in it against selling software as the product; only cutting the consumer and other developers off from seeing the source and improving on it. For some companies, that's worse than the "but you can't earn money from it" FUD. It keeps them from taking someone else's work and placing a monopoly on it's ideas. They rely on hiding questionable work behind closed source and claiming ownership to ideas instead of one solution to the same problem. Mind you, it all depends on the license the original code is written under. As the other comment mentions, BSD license is a free-for-all; "here's our code. do what you like with it." (And, that's how Windows got a TCP/IP network stack ;D )

Aaron Mason
Aaron Mason

>But if they charge for it they would have to pay a portion to the original writer. [citation needed] Where does it say that, and in which license? The GPL makes no mention of this, and the BSD license is 3-4 clauses, none of which say anything about reimbursement.

Neon Samurai
Neon Samurai

Not just developers who give away there own work but third parties who premote it's use or shared source. They'd like you to be considered an copyright insurgent for suggesting that your management choose a FOSS based server product. Hopefully your right and the rational fear of the people beats out the desire to support corporations agendas. Given some of the madness that's gone on with simply media spin, here's hoping your right.

santeewelding
santeewelding

I stalk you. I confess that I need to stay abreast of mile-high views. Your view largely coincides with my own. Only, that I have with great regret stopped voting. I vote for other, feral, things.

NickNielsen
NickNielsen

I don't think such an anti-competitive point of view has the slightest chance in Congress. I don't think even the most pro-business congressman could justify making it a crime for somebody to voluntarily give away the product of his labor. Most Americans already consider Congress to be big-business hey-boys. If such a bill were to pass, it would be the ultimate statement that Congress only listens to the big money. The home-towners, tea partiers and even responsible voters would have a field day, and, I suspect, come the morning of November 3, a very large number of incumbents would find themselves lame ducks. Personally, I'm already strongly considering an "against" vote this year. I don't mind partisanship, but what we have now is ridiculous. The only good part about it is that Congress isn't getting much done. Of course, that's also the bad part about it... etu

mamies
mamies

:D:D:D sorry i had to laugh at this one. Funny how things seem to happen isnt it.

dougogd
dougogd

If this didn't happen everyone that does open source would be in trouble thanks to Microsoft. They would just use the code copyright it and then sue all of the original creators for using it in Linux or any other open source software.

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