Copyright Protection Problems For OSS Project 390
An anonymous reader writes "There's a federal case in the Northern District of California where copyright for open source is being challenged. The free software project JMRI discovered that a commercial company was
using some of their files in a product, in violation of the license. They added a copyright claim to an ongoing legal action about cybersquatting, software patent abuse, etc. The patent case was covered on Slashdot back in June but the copyright part is new. The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.'"
Re:Hate to break it to them (Score:5, Informative)
Of course, to give credit, that came from:
h s.html
10 Big Myths about copyright explained
http://www.templetons.com/brad/copymyt
The copyright fallacy in a nutshell, finally! (Score:4, Informative)
The other side came back with an argument that copyright law didn't apply, simply because they software was 'being given away for free.
Copyright is not a guarantee of a revenue stream, or even an implication of one. It's about ownership.
What you choose to do with that ownership is your own business. Make a fortune, or not. Your copyright, your choice.
Re:Hate to break it to them (Score:5, Informative)
Not that I agree with this argument, but it's what they're making. They're not making an argument that the software is public domain. In fact, the phrase "public domain" does not appear in the filing.
The filing also references Sun v Microsoft. It's also interesting because if you successfully apply this argument to other software, you would be immune from prosecution for running a warez site, though you'd still be on the hook for contract violation. IANAL, of course.
One by one the dominoes fall... (Score:4, Informative)
This case looks like it'll help shut up those morons who think free software licenses (i.e. the GPL) are unenforcable.
We've had Sitecom's laughable 'exhaustion of rights/first sale' argument thrown out of court in Germany.
In another German case, D-Link tried to claim that the GPL was invalid, therefore they had a right to use GPL'ed code as if it was public domain. That didn't get them anywhere.
And Daniel Wallace has been slapped eight ways to Sunday in two court cases (one of them being taken to appeal) for attempting to claim that the GPL violated the antitrust laws. Impressively, he spurred three different judges to each give a ringing endorsement to the GPL, one of them going so far as to refer to Linux as 'GNU/Linux' exclusively throughout his final ruling!
Now here, the defendant is mirroring a common anti-GPL troll, by claiming the Artistic License is a contract, not a license, and that code given for free on the internet is public domain. He's going to lose of course, and the precedent will almost certainly apply to the GPL when he does.
Now all we need is for some kook to try claiming that the GPL, or some other similar license, is preempted by the US constitution (You still there, SCO?), and that's pretty much all the standard anti-GPL attacks exhausted.
Looks like free software's legal foundations are being solidly built as we speak...
Established precedent in print journalism (Score:5, Informative)
While those copies are being offered for free, they were not produced for free. This is why so many of such free papers now bear a label similar to "Take one, if you want more, contact the editor."
In the software world, the open source plaintiffs could argue that, while their product is offered for free, it was not produced for free. That, and the license under which the defendant agreed to use the software specifically states that they must follow the terms of the license in order to use the software.
Who they are (Score:4, Informative)
KAMIND Associates [kamind.net] delivers Microsoft solutions for small business customers. We use a standards methodology in understanding our customer's needs. Our policy is to evaluate the customer requirements and generate a phase plan of action that details the work needed to accomplish the task - fully disclosing all problems and issues.
As part of our service model, we work with customers to develop an integrated IT services plan that solves the customers need and results in long term bottom line savings.
As a locally own small business owner, we are very much aware of the cost of an improper IT solution that does not deliver the productivity gains expected. Our phased approach for small business is a win-win business model. Our customers win by having an efficient solution for the their problem, and we win by delivering the solution on time, on budget and on schedule.
KAMIND Associates specializes using Microsoft technologies for commercial and retail market. These areas of include.
I would personally stay away from any company whose management cannot understand basic copyright regulation and attempts to defend itself with such a nonsense argument as "the software is being given away for free".
Re:Hate to break it to them (Score:5, Informative)
Re:Hate to break it to them (Score:5, Informative)
They absolutely need to agree to a license [fsf.org] (not sign a contract) to use the software. The terms of the license say that you have the traditional rights granted by copyright (which means you're not allowed to copy someone else's original work), but that *if* you comply with the terms of the license, they'll grant you the right to redistribute, modify, etc.
One of the conditions in the terms of the license is that you aren't allowed to *change* the terms of the license in a number of ways. If you do, then those rights are rescinded, and you go back to only having the rights granted under copyright law (which means, you have to ask my permission to do anything with it).
You said (in part):
You're bound by the terms of the license that the software is distributed under. The person who distributed the software to you did so with the knowledge that there were certain things that had to be done to be in compliance with the license. One of those things is to make sure that the license is distributed with the software, so that it's clear what's allowed and what's not.
If you received the software without the license (i.e. the person who distributed it failed in their duties to comply with the licensing requirements), then that doesn't mean you are allowed to ignore copyright law or that your copy is magically license free. Just ask the folks at the BSA about that. Millions of illegally-licensed copies of Windows are installed and used every year, and there are very real penalties for knowingly doing so.
You also said:
If the contract was for support, then they paid for support. The license is a separate thing...it covers under what conditions you may use the software under, not whether you will receive support.
You mentioned that you wouldn't be bound by that agreement (the support one) any more than redhat would be bound to give you support. True, since you didn't enter into a support contract with them (although you could do so very easily). You then mentioned that:
This almost true, since you would be bound by the terms of the license of the software you received, not by a contract signed directly with a particular company or person. Traditionally, copyright was the only legal condition allowed for distributing a work, but the GPL is becoming common, and allows more freedom. The GPL says (in part):
The only reason you are *ever* allowed to redistribute is because of the license. If you don't accept the terms of the license, there isn't anything else that magically gives you distribution rights. It doesn't matter if you got it direct from RedHat, or from some guy in a van behind a seedy building, the only rights you have are copyright and the license the work is distributed under. Copyright gives you certain fair-use rights, none of which would apply to you distributing someone else's software.
Re:Read the brief they filed - he *may* be right (Score:3, Informative)
Federal courts are perfectly able to decide matters of state law, and in fact do so all the time.
Anyway, federal copyright law includes a provision that preempts state copyright law. The idea is that this way there is only one system of copyright law in the US, rather than parallel state and federal systems, where the state systems might differ amongst themselves. Remember that the federal government lacks inherent powers and instead is given powers from the states and the people. The states had copyright laws before the current government even existed, but it was one of those sorts of things that they tended to do a poor job with, which is why the federal government, when it was created, was given some more authoritative power there too. Even so, there was still significant state copyright law in operation until the 1976 Act, and there's still some even today. However, in an attempt to clean things up, the preemption statute was put into place. Basically, if a state has a law that is the equivalent to copyright, the federal law makes it non-operative. Of course, states can still have laws that are sufficiently different from the federal scheme to remain active, even if they're basically copyright laws.
Here, the plaintiff is making some state law claims, and the defendant is saying that they fall under the preemption statute and are void. They may be right, though I'd have to see exactly what's being claimed. However, the federal copyright claims can't be dispensed with so easily.
In order to attack those, he's saying that the plaintiff copyright holder has a valid copyright but has given permission to the world to engage in the behavior that the defendant is accused of. This is possible, though it's either the same or nearly the same as putting the work in the public domain. And if the work was merely GPLed (and not also or alternatively placed under some license that does what defendant says) then I don't see it being a winning argument. Still, you have to argue the case you've got, not the case you wish you had. As with most legal disputes, this'll probably just end up settling.
Re:Absolutely False! (Score:3, Informative)
Well, there are technically conditions imposed if you chose not to agree to the license. but those conditions are only the legal rights to distributing the software/code. If you refuse the license (with a GPLed piece of code), you are refusing the only condition to get those rights. SO if you refuse, you cannot give the stuff to anyone else for any reason other then what fair use on copy written work policy might allow.
Everyone who is claiming you need payment isn't looking at the whole picture. They seem to think that because if I give you something free as in free beer, it is yours. But they aren't looking at the hidded aspects of copyright. But,it payment is felt neccesary, the payment with the GPL code and software even if it is monetarily free as in free beer is still there. Doing an action like painting a house for a car instead of the money to buy a car is still income and expenses and generaly considered a transaction. Accepting a license or refusing to accept a license and not distibuting the protected work can be the payment if one needs to be there. Especially when some people place such a high value on free software.
Re:Read the brief they filed - he *may* be right (Score:3, Informative)
For example, let's say you are arrested in your state, by your local police, and they make some kind of terrible procedural error. You'll end up in a county court, most likely, which is a court created by your state, but you can make an argument based on the federal constitution. The court will consider this law, which is foreign to it in that it's a state court, not a federal court, and can interpret it, and rule accordingly.
A state court can not only deal with federal law, but it can also interpret the law of other states in making its decisions in a case that demands it. And likewise, federal courts that need to consider matters of state law are able to do so. In some cases, these courts can even interpret the laws of foreign countries. Naturally, a court that makes an interpretation of foreign law can't issue an opinion that's binding on the foreign courts (e.g. a state court can't bind a federal court on federal law, just as a federal court can't bind a state on state law), but it is binding on any courts below the one issuing the opinion, and can still influence the foreign court if it's a particularly good interpretation.
One way to get to federal court is through diversity, as you noted. The idea there is that the federal court, not beholden to any state, will be fairer than a state court would where one party is a native and the other party from outside that state. Another way is to have an issue of federal law at stake. For most such issues, there is concurrent jurisdiction; a federal claim could be made just as easily in state court as in federal court, and it's up to the plaintiff to get to pick.
But in this case, Congress made a law (28 USC 1338) that says that the federal courts have exclusive jurisdiction in copyright cases. This means that if a case is a copyright case, no state court can hear it at all. (Of course not all cases that involve a copyright at all are actually copyright cases; many are really contract cases where the copyright could just as easily be a microwave, since it's just the thing being fought over) This is because Congress doesn't want states to have much of an effect on copyright policy. And since our judicial systems also have a rule of res judicata, a plaintiff can't split his claims; he has to sue the defendant for everything he can as to the complained of factual scenario, or else he loses the claims he didn't bring. So the federal court has to hear the state claims or else the defendant would have to choose between a copyright suit or a state law suit and couldn't bring both. This is the only fair way to do it.
The defense makes one good point... (Score:5, Informative)
IANAL - but that seems reasonable to me. Of course now they need to be stuck with a charge of breaching the license terms - but that's evidently not what the prosecution have accused them of. The problem is that the Xfree and similar licenses don't have cast-iron legal language as GPL does - so with weak language describing the 'licensing' terms - it seems possible that the defendants could indeed weasel their way out of this.
Personally, I think that if you are going to use one of those licenses, the best you could hope for is a one line mention in the very small print of the Albanian section of the user manual - somewhere between the environmental impact statement and the warning not to let children under 3 years play with the software because of choking hazards. Why the heck you'd find that important escapes me. If you want solid copyright protection, use the GPL - if you want utter freedom for people to do whatever they like with your code - then don't be surprised when they do exactly that.
Re:Hate to break it to them (Score:2, Informative)
Re:The defense makes one good point... (Score:4, Informative)
In at least some OSS licenses, a license for distribution of the software is granted only as long as the express limitations of the license agreement are followed. If you violate the terms of the agreement, you expressly invalidate the license that permits you to distribute the software. If you then distribute it anyway, you are violating copyright law. As you say, it really depends on what this particular license says in this case, though if it were the GPL, it would probably be ironclad enough to withstand the issue that came up in Sun v Microsoft.
Re:Hate to break it to them (Score:2, Informative)
If not, you couldn't be more wrong [gnu.org]:
-Peter
Re:Read the brief they filed - he *may* be right (Score:5, Informative)
My interpretation is that as long as you provide a link to the author's web page somewhere on your site, you are golden.
Sounds like you can incorporate the open-source code into a commercial program, as long as you do not advertise that you are using it!
There are also no patent requirements -- at all! Which means someone can patent the ideas in the source code and then sue the original copyright holder -- while distributing the code! Since the existence of prior art does not render an issued patent invalid, this is a distinct possibility. Not to mention, how are you going to argue monetary damages if there are barely any restrictions?
Really, it sounds like the guy suing JMRI is mostly in the right, legally speaking. The artistic license may not be enforceable, and appears to give him the right to distribute the code commercially. The breach of contract suit won't yield any monetary damages -- the license is not restrictive enough. His patents are valid (at least until the USPTO revokes them, which may never happen). All I can say is... should have used the GPL.
Re:GPL (Score:3, Informative)
> Same, really, if you ask me.
> We want our cake (GPL, OSS, etc) but we wanna eat it too (i.e. all EULA's are invalid, thus don't bind us or count).
No. Unless I'm severely mistaken, the GPL is nothing like a EULA because a EULA dictates rules and conditions that are supposed to govern your usage of the software as soon as you have purchased and installed it. The GPL on the other hand covers distribution. You can do whatever you like with a GPL program, including modifying it without releasing the changes to the source, so long as you keep it to yourself, because the GPL terms only kick in if you start handing out copies to other people.
The idea that EULAs are invalid comes from the absurdity of attaching a contract to any other copyrighted work such as music, artwork, and literature. By default you can do what you like with these - no one makes you sign an agreement (yet) saying that you can only listen to a CD if you're in your car or its your birthday. But you cannot copy and redistribute a work by default (barring Fair Use). This is illegal except through the terms of the GPL, or whatever other license the author chooses. If the license has a condition that says you have to walk on you hands and spin around three times before you're allowed to send a copy to someone, you're allowed to not obey that term; you simply lose your authority to legally make the copy.
Hate to break it to you (Score:3, Informative)
Repeat after me. Violation of the GPL terminates your redistribution rights and it falls back to a standard copyright violation. The 1998 precedent has no bearing whatsoever because you are violating copyright law.
Keeriminy it's simple.
Re:Hate to break it to them (Score:3, Informative)
They absolutely need to agree to a license (not sign a contract) to use the software.
The GNU GPL says:
Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted
So you do NOT need to agree to ANYTHING to USE the software. The GNU GPL (as with any other copyright license actually, despite what some would have you believe) applies to copying, distribution and modification only.
Re:Hate to break it to them (Score:3, Informative)
Now if you want to take out a support contract with me, that's fine and I'll take your money. However all you're buying is support. I'm not re-licencing the software because I don't have that right, neither under the GPL, nor under copyright law. The copyright remains with the holder, and since the licence is a separate agreement, it remains between you and the copyright holder.
Hope that helps.
Re:What you are saying doesn't make sense (Score:3, Informative)
Just to put it in my own words, the paragraph (from the court decision above) is making the distinction between failing to uphold a duty (convenant) imposed by the license (like making a payment required by the license), and failing to satisfy a condition of the license (like you are allowed to distribute binaries compiled from the source but not source code itself, or you are allowed to distribute source and binary together but not binaries by themselves). Failing to satisfy a covenant doesn't mean you are guilty of copyright infringement because the court can force you to make good on your convenant to repair the damage done (like making you pay unpaid bills).
Failing to satisfy a condition of the license that grants you rights, however, and you *are* guilty of copyright violations, because then you are exercising rights that were not granted you by the license, and which are denied to you by copyright law unless granted by a license.