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Strong Court Ruling Upholds the Artistic License
Posted by
timothy
on Wed Aug 13, 2008 03:41 PM
from the clear-cut-copyright-clause-crackdown dept.
from the clear-cut-copyright-clause-crackdown dept.
dilute writes "The US Court of Appeals for the Federal Circuit (an authoritative court that normally deals with patent law), has issued a strong ruling (PDF) upholding the Artistic License in a copyright dispute between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under the Artistic License, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version." Read on for more, below.
Dilute continues: "The lower court denied relief, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). In a strong ruling, the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses."
Reader ruphus13 point to Lawrence Lessig's commentary on the ruling; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
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Good for GPL but... (Score:4, Interesting)
; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.
As well as most EULAs I suppose... or is a legal distinction made between license for personal use vs. license for redistribution?
Re:Good for GPL but... (Score:5, Informative)
>or is a legal distinction made between license for personal use vs. license for redistribution?
Yes, there is such a distinction from the start -- copyright protects distribution, not use.
You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.
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Re:Good for GPL but... (Score:5, Insightful)
Yes, there is such a distinction from the start -- copyright protects distribution, not use.
copyright protects *copy rights* including: copying, redistribution, performance, and broadcast.
You need a specific contract if you want your license to speak to use. For distribution, you
reserve all rights under copyright law, license or no license.
What difference does it make when "using" the software entails making a copy to your hard drive, and then another copy into ram, and then another copy into cache? Using it entails copying it.
If I have no license to use it, I can't make those copies.
So you can't use it without a license.
And the courts have ALREADY made rulings that apply copyright infringement to occurring in an unauthorized 'disk to RAM' copy made by that WoW cheat program. (glider?)
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Re:Good for GPL but... (Score:4, Informative)
USC Title 17 Chapter 1 section 117 paragraph (a) [cornell.edu] grants permission to make certain copies, eg. those neccesary for running a computer program. To be technically picky about it, it says that it is not an infringement of copyright to make those copies or to authorize having them made.
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Re:Good for GPL but... (Score:5, Insightful)
Although I admit that some judges have been stupid enough to buy it, that argument is bullshit because those copies are incidental to the physical workings of the medium, and express no intent on the part of a human.
By the same argument, DVDs would require an EULA because they're decrypted and stored in the DVD player's RAM, the Internet couldn't exist as we know it because routers would violate copyright if they were set to store-and-forward (and I'm not even going to mention proxy and mail servers!), books would require an EULA because their information is copied into photons by the light reflecting off them and into the reader's eyes, etc. It's absurd.
And this isn't even a Fair Use argument: the installation of software onto hard drives and duplication into RAM shouldn't even count, legally, as copies to begin with! (As long as there's a one-to-one correspondence between the installed program and its installation media, of course.)
And those courts were wrong.
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Re:Good for GPL but... (Score:5, Interesting)
Let's all hope. This could totally trash EULAs that some people have been attempting to enforce despite the other parties never taking the offer.
JMRI: we offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
Kamind: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that JMRI offered. The terms of copyright law are now in force.
Kamind: May I create and sell derived works?
Court: Copyright law says you may not.
Kamind: oh, crap.
Apple: We offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
User: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that Apple offered. The terms of copyright law are now in force.
User: May I install the software I bought on my computer even if Apple didn't make the computer?
Court: Copyright law says you may.
Apple: oh, crap. we should have required signing a sales contract, as a condition for obtaining the software.
Blizzard: oh, crap.
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Re:Good for GPL but... (Score:5, Interesting)
Like this this? [amazon.com] You and I are unusual people; yes, we read slashdot, follow trends in the software industry, and know that many, probably most, proprietary software packages come with some sort of statement about a license. But if Joe Sixpack looks at that page the above link points to, he would have no idea that a transaction between him and Amazon causes him to be bound by a contract with a third party. He would have no reason to even suspect it. By the time he receives the box, whether there's something printed on the outside or the inside, he has already paid Amazon.
And god help him if, when the box shows up on his doorstep, someone else (e.g. his kid) opens the box and installs it on his computer. With every other contract in every part of my life, there was never even a chance that someone else who doesn't have power-of-attorney (or good forgery skills), could perform an act that gets me into a contract unknowingly. And that's not surprising; it's fundamental to the concept of responsibility.
It gets even weirder to think that when the box arrives, Joe Sixpack owns the box and its contents, but as soon as he (or someone else!? see above paragraph) looks at it or opens it and becomes aware of the existence of some license, his ownership ceases and is replaced by licensing. I guess we should call that the Heisenberg uncertainty principle of software ownership.
If the courts assert the license is binding anyway (and the courts have to, since none of the legislatures have done so), they are making a very special case, where purchases of this one type of product (software), works unlike anything else in the realm commerce.
That right is asserted inside the license. Taking advantage of that, presumes that the unwitting buyer has already read and accepted the license. What if that's not the case?
That just points out Yet Another paradoxical consequence of the ProCD court's misunderstanding. If users are bound by Apple's license when they buy software from a third party like Amazon, how did Amazon avoid being bound by the license when they bought the software from Apple? Professional resellers are even more informed about this subject than users; there's no way they can credibly assert ignorance of the contract, if users can't. The fact that "common practices" contradict a supposedly-binding requirement on the reseller, makes one question whether or not it's really a requirement.
Unconsenting/uninformed licensing raises too many paradoxes and weird situations that defy common sense and common law. It will eventually be overturned.
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Re:Good for GPL but... (Score:4, Informative)
It's NOT a EULA.
The GPL doesn't cover USAGE (In fact, it explicitly prohibits the placing of any restrictions on usage by downstream recipients...)- it covers a little different thing.
It covers publication and derivative works.
If you give a copy to someone else, you're publishing a copy.
If you make a modification to the protected work and then give that to someone else, you're making a derivative work.
Neither is usage in the eyes of Copyright Law.
If you fail to abide by the terms under which you are given permission to do so by the various rights holders, you don't have their permission and thereby are guilty of straight Copyright Infringement.
Willful acts thereof are viewed in a very dim light by the Courts and the Law.
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Re:Good for GPL but... (Score:5, Informative)
On the contrary, the issue being decided here is copyright law. To say that the Artistic License is "stronger than copyright law" makes no sense, as it relies on copyright law for its enforcement. In essence, the court ruled that the Artistic License works the same way as the GPL (even though the GPL makes it explicit and the Artistic License doesn't):
(GPL version 3, section 9; emphasis mine)
The argument made by the emphasized text is the same argument that the JMRI people made here (and that the judge agreed with).
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Re:Good for GPL but... (Score:5, Insightful)
It's not stronger copyright law, it's just common-sense upholding of contracts.
JMRI offered a license which overrides copyright law and Kamind violated the terms of that license. The court is saying that when Kamind broke the terms of the license, the copyright-defying activities that the license allowed, were no longer allowed.
If I offer to trade you a moon rock for a pint of ice cream, and you don't give me a pint of ice cream, then you don't get my moon rock. Kamind wanted to take the moon rock anyway, and then say, "Don't like it? Then sue me for the value of a pint of ice cream! Nyah nyah!" JMRI says, "No, I'm suing you for the value of my moon rock."
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Re:Good for GPL but... (Score:5, Insightful)
It's not stronger copyright law, the way copyright works has not changed at all, it's just an already existing copyright being honoured by the federal court, after for some reason a lesser court refused to honour it. I could probably explain better if I RTFA but we all know that's not going to happen.
The judge in this case corrected a blatant error by the District Court.
Like the GPL, the Artistic License basically says "You can copy this software provided you do X, Y and Z". The correct interpretation of this license is: If I do X, Y and Z then I have the right to copy the software. If I don't do X, Y and Z, then I have no right to copy the software, and copying is copyright infringement, and courts will stop me from doing it if the copyright holder asks them. The wrong interpretation, used by the District Court, was: I have the right to copy the software. I am also obliged to X, Y and Z, and if I don't do them, then the copyright holder can sue me to do X, Y and Z or pay damages. However, the copyright holder cannot stop me from copying. As I said, this has now been declared the wrong interpretation.
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Re:Good for GPL but... (Score:5, Informative)
Exactly: it isn't one!
Yep, this is a fairly serious bug in those software's installers. I keep meaning to file it on OO.o's tracker...
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Re:Good for GPL but... (Score:5, Insightful)
They should put the GPL in the license agreement spot, but allow the "next" button to be clicked even if the agreement is not read or agreed to.
A small blurb saying acceptance is not required to use the software, but is required to distribute copies (modified or otherwise) would be an extra perk.
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Re:Good for GPL but... (Score:5, Insightful)
Rights that are asserted under copyright, are not surrendered based on any money changing hands.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
I think you have the ideas of a "License" and a "Contract" conflated. A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.
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Re:Good for GPL but... (Score:5, Informative)
I have no idea how this got modded insightful. It doesn't even make sense.
You have two concepts confused: Rights are reserved, not granted, but contracts require consideration.
Contracts have nothing to do with it. Copyright does indeed deal with reserved rights--the creator's rights. Any right not granted by copyright or by independent agreement is reserved by the owner. Copyright does not supersede contractual rights; indeed, the entire point of contract law is to create relationships outside of or contrary to statutory law.
A contract is not valid without
consideration (e.g., "money changing hands"), but rights are reserved by default.
What does this even mean? Consideration is one way of validating a contract (but not the only way), and this has exactly nothing to do with reserved rights.
A license is a grant of rights. It is a promise not to sue. That's it. The GPL is not a license, because it says, "I promise not to sue IF you do x, y, and z"--that is a license agreement. It contains a license, but it too requires assent. Failure to provide that assent results in failure to attain the needed license, thus placing a person in a position of copyright inflation. The attempt to characterize it here as mere breach of contract is an attempt to limit potential judgments, as contractual damages are far less than statutory copyright damages.
It is not a binary situation. Finding copyright infringement does not preclude breach of contract, and in fact the two usually go hand in hand in licensing disputes. It is possible to infringe the copyright without breaching the contract, and it is also possible to breach the contract without committing copyright infringement.
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Oh Hell Yes (Score:5, Funny)
Finally, a court for the 21st century! (Score:5, Insightful)
Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.
This too:
The copyright holder here expressly stated the terms upon which the right to modify and distribute the material depended and invited direct contact if a downloader wished to negotiate other terms. These restrictions were both clear and necessary to accomplish the objectives of the open source licensing collaboration, including economic benefit... Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.
Good to know the court system can still work!
Smack down (Score:5, Informative)
Katzer and company really need to be smacked down.
On their web site, they try to create the impression that they had their own solution and didn't copy any code from the open source guys, but, then, in court, they fully admit that they in fact, did that.
So, they stole a bunch of code, made some money on it, then, they admitted it in court, but continue to lie to the public about what they did.
I mean, how sickening is that?
Re:Smack down (Score:5, Informative)
It's not even just that: Katzer also went and got patents over the concepts expressed in JMRI, which were only granted because he failed to disclose JMRI's prior art to the patent office, and then sued the JMRI people for infringement of their own code!
The open source guys didn't even start this; Katzer did. He brought it upon himself!
JMRI has a long and detailed page [sourceforge.net] describing what happened. I highly recommend everyone reading it; it's amazing how brazenly this prick Katzer (and his lawyer) tried to rip everybody off.
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Re:Smack down (Score:5, Informative)
What justice?
Bob Jacobsen has paid Katzer $30,000 in judgments [sourceforge.net] against Jacobsen, as well as his own legal fees. Katzer's made money off his product and gotten his legal costs paid for, and as I read the judgments, has yet to actually lose anything other than three of his 12 patents.
Katzer isn't winning, but JMRI is suffering a lot more than Katzer is.
I'm glad the court ruled the way it did but a lot of JMRI people have gotten pretty badly ground up along the way. This is only justice insofar as the rest of FOSS has dodged a bullet.
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Which version? (Score:5, Interesting)
"You" is you, if you're thinking about copying or distributing this Package.
That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves. Also, the license is automatically binding for anyone who is thinking about using the license? Compare to a Creative Commons license, where
"You" means an individual or entity exercising rights under this License...
You'd think programmers would know better than to let ambiguities like that by. (And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road.)
Now we're on Track (Score:5, Funny)
This is rail nice. I do believe open licenses are at a critical junction. Kamind certainly bit off more than they can choo.
Re:Now we're on Track (Score:4, Funny)
I should have posted this anonymously. I'm a freight of getting modded down.
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What about the $30,000? (Score:5, Insightful)
I want to know if Bob Jacobsen got his $30,000 (legal fees paid to the scum suckers) back.
Re:Sounds like very good news for the FOSS communi (Score:5, Informative)
Yeah, the GPL was upheld in Germany as valid.
The truth be known, if the FOSS licenses were held to be unenforceable, then most of the publication, etc. licenses that the record labels, book publishers, etc. live by would also be so- and NOBODY in that space wants that.
These licenses are NOT EULAs. They're all largely publication and derivative works licenses- with the royalties being whatever the terms of the license requires for being able to publish the stuff to downstream recipients.
No license?
No publication. No derivative works.
You publish or make a derivative work without the license to do so, you're guilty of willful infringement of the rights holders. That carries a much, much nastier penalty than accidental ones and it's something Verizon and Actiontec did NOT want to face the music on in court- so they settled out of it once it got filed.
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