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.'"
Hate to break it to them (Score:4, Insightful)
See Also: Out of Germany, but even someone like D-Link couldn't shake the GPL:
It's not being given away for free (Score:5, Insightful)
Promotional CDs (Score:5, Insightful)
I'm pretty sure that this defense won't work.
What part of the copyright act requires money? (Score:5, Insightful)
I can do that too! (Score:5, Insightful)
Using their argument, I guess that if the publisher sends me a free book I can make copies. I put my name on as the author and sell too.
IT'S FREE!
ANYTHING GOES!
That won't fly in court (Score:5, Insightful)
Your honor, since Star Wars was shown on TV, for free, I had every right to edit in some new scenes and sell it as Matt's Space Adventure.
Yeah, right. This sounds like the defense of last resort.
I recognize that I know nothing about this topic (Score:1, Insightful)
Re:Should be open and shut case. (Score:5, Insightful)
I remember this story when it first came into public light. Given the volume of documentation available via JMRI [sourceforge.net], additionally via groklaw [groklaw.net], and elsewhere, I'll avoid going into specifics, but it was and remains quite clear that JMRI's copyright was being flagrantly infringed by an aggressive and offensive party.
Please read the brief summary of legal proceedings available here on their site. [sourceforge.net]
There is no way I can see JMRI losing, if the American court system has any integrity left at all.
As you'll see, they're not exactly doing too well. This is unfortunate and greatly diminishes my confidence in the American legal system.
Re:What part of the copyright act requires money? (Score:5, Insightful)
I'm sure the actual case is more complicated and nuanced that that, however.
Re:Should be open and shut case. (Score:5, Insightful)
Re:Should be open and shut case. (Score:4, Insightful)
Think of it this way: Internet Explorer is free. Broadcast radio is free. Broadcast television is free. Demo software is free. Lots of newspapers are free. All of these things have moneyed companies behind them that would be completely screwed if the court rules that copyright protection only applies to things that are sold.
So regardless of whether the court system has integrity or is up for sale to the highest bidder, I think JMRI wins this one.
Re:Doesn't matter. (Score:3, Insightful)
EFF? (Score:5, Insightful)
Re:GPL (Score:2, Insightful)
In letter, yes, the GPL is the same as every other license. In spirit, however, the GPL is more of a license of empowerment while most others tend to be licenses of restrictions. The history and philosophy of the GNU project, and especially Copyleft [gnu.org], make this distinction pretty clear. If the distinction isn't already known or obvious to you then you will be doing yourself a favor by perusing GNU [gnu.org]--which has a snazzy new look to it since the last time I visited.
Already a $30,000 miscarriage of justice (Score:5, Insightful)
Because Jacobsen basically made the wrong technical legal charges in an effort to gain relief from Katzer's false accusations and harassment, Jacobsen, the open source developer, ended up being forced to pay Katzer approximately $30,000 in legal fees.
It appears that Jacobsen represented himself.
Now, this situation in itself is deeply disturbing. Jacobsen apparently did not hire a lawyer, and what is disturbing is that he should NOT have had to hire a lawyer in order to get relief from bullying by Katzer and his corporation that was already interfering with Jacobsen's personal and professional life. Because he thought justice would be done for the little guy if you are just honest, he made charges that were technically wrong. An honest mistake. A technicality.
In the case of a private citizen against a corporation (KAM in this case), justice must not come down to whether the citizen dots his 'I's and crosses his 'T's. Justice must not be dependent upon the citizen's economic means. In this and many cases it clearly was. The legal system through which we must rely for relief from injustice such as this is truly a quagmire as we can see in this case by Jacobsen, clearly the victim, being forced to pay legal fees to a corporation because of a technicality.
Do you realize it is illegal in most states for an ordinary citizen to read try to help another citizen by answering questions about what a law even means - for attempting to understand on our own the laws the govern our lives? There is a tax on justice to the tune of $200/hour+.
Jacobsen should be able to go into a court, tell the court what is happening to him, and the COURT should look at the situation and say, look, you are the victim here, this is what laws this asshole is guilty of, if he does this again you come back here and we will punish him.
THAT is what should happen. I don't care how it is done. Maybe that means public attorneys who we can go to for legal advice and to file the correct charges in court. Maybe that means courts that we can just make in and the judge will be responsible for determining if and how he has been wronged. This isn't going to be popular with the trial lawyer lobby. The same as they have lobbied to make it illegal for us to try to help fellow citizens to understand the laws that govern our lives, they also strongly resist any move that would allow us people to get justice out of this system of ours without inserting quarters in their pockets just to play.
You won't see Republicans get behind this because their big business sugar daddies want to keep citizens under their thumbs. You won't see Democrats get behind this because they are in the pockets of the trial lawyer lobby.
A technicality is not justice at all. Fuck you KAM. And fuck you you goddamned lawyers who work for money not for what is just and true.
Am I the only one... (Score:3, Insightful)
Re:Hate to break it to them (Score:4, Insightful)
The issue is that the license and the license alone is what permits the redistribution of the copyrighted materials. If you breach the license/contract/whatever, then without it, you have copyright infringement. Neither does receiving copyrighted materials from someone else absolve you of the restrictions placed on you by copyright law.
Unless, of course, your belief is that it is a perfectly valid position to claim that the license is invalid and you're not going to follow the restrictions on it, but the license is still valid. I'd love to see what happens to the world if that becomes a precedent. "I think my cellphone contract is bogus so I'm not going to pay you. But I expect you to continue to provide cell service for the rest of the year because we have a contract." Or maybe "I think our cellphone contract is bogus so we're turning off your service tomorrow. But I expect you to continue to pay us for the rest of the year because we have a contract, or pay the early termination penalty." Sounds fun.
Re:GPL (Score:2, Insightful)
Re:you'd think, but... (Score:5, Insightful)
It's despicable, but that's how justice works in this country.
We need a system where a guy like Jacobsen here can just go down to the court, tell the judge in plain words what this fucker Katzer is doing to him, and get relief without having to put up big bucks for a lawyer and without facing $30,000 in essentially fines because of a technical screwup that someone without legal training can't be expected to have forseen.
I know why it's bullshit... (Score:2, Insightful)
Re:GPL (Score:5, Insightful)
The GPL is a distribution license, not an End User Licence Agreement. EULAs are licenses to use the software. The GPL is a license to distribute the software. You do not have to agree to the GPL to use any GPL software. The GPL gives you more rights than default copyright gives. EULAs give less rights than default copyright.
I believe EULAs are invalid by the doctrine of first sale. But, of course, IANAL. I feel that if EULAs are upheld we're going to start seeing EULAs on automobiles and other such property. Imagine if the computer chip in a car would keep the car from starting if you weren't using a "certified" fuel filter or gasoline. Then if you tampered with the chip (your propery, mind you since you paid for it), the manufacturer would sue you under the DMCA. You'd scream bloody hell, but for some reason when it comes to software people take it in the ass.
Re:Should be open and shut case. (Score:3, Insightful)
Either you pay the access fee - exorbitant private attorney fees - or you risk going into debt, even when no sane person would say you are guilty.
You won't see this issue on anyone's political platform either. Republicans are in bed with big business who don't want average joes to be on even playing fields, and Democrats are in bed with the trial lawyer lobbies. If average joes like Jacobsen the open source developer here can get free legal advice and get free representation to get relief from abusers like Katzer, all of a sudden all these lawyers are up in arms because most of those fuckers are more concerned with lining their own pockets than they are with truth and justice. They write our complex laws. They write our licenses and contracts. They lobby to guarantee themselves a monopoly on legal advice. And they will eat you up and spit you out if you so much as try to challenge them.
In order to get justice in this country we need to break the despicable monopoly on access imposed by private attorneys. We need to make them public. Access for all to justice is even MORE important than access for all to medical care. Maybe we can't afford the best medical care for everyone. But let it not be said that we did not guarantee every person regardless of race, class, ability or intelligence, Justice to its fullest.
Re:I know why it's bullshit... (Score:3, Insightful)
It won't hold up, because that's not what they really said. They're really saying, "We licensed your software, and if we're not complying with the license, then sue us for that. But once you offered the license and we accepted, then copyright was no longer an issue. The issue, now, is the contract."
Presumably they have figured out that there is some advantage to being guilty of violating a license, rather than being guilty of violating copyright. If you're going to lose, lose the way that hurts the least. :-)
Re:Already a $30,000 miscarriage of justice (Score:4, Insightful)
Re:Already a $30,000 miscarriage of justice (Score:3, Insightful)
I don't consider making false charges in a court of law to be a technicality. In this case, it seems like a legitimate mistakes by a person who has probably legitimately been wronged, but I fail to see any reliable method of judging when it's a mistake and when it's somebody throwing shit at the wall to see what sticks. I hope we can both agree that the latter is a waste of time and taxpayer money and should be punished.
That said, the problem appears to be with a poorly-written law. If you read their little summary page, you will see that the anti-SLAPP law was not intended to be used the way that it was. The fact that it could be is because of the vagueness politicians love to deal in. That vagueness is not an accident, either.
Personally I do not want my money being spent on that. These guys are using the time of judges, federal judges which I am helping to pay for. They're using the time of these judges to settle private disputes. Free-vs-closed dogma aside, the outcome of this case will not affect me. Chances are even if you view the issue as some important legal issue that needs to be addressed, the ruling will be constrained enough to have little effect. Precedent says that if the EXACT SAME case came up again, a ruling should go the same as it did previously; it leaves up to the individual judges whether or not the facts of the cases are different. In cases like this, they almost certainly are going to be.
Another thing I don't particularly want to be paying for. Look, if you want to tie up judges to settle your private dispute, that's fine. That's what they're there for. But I do not think it is an unreasonable burden to place on litigants that they either invest some of their own resources into doing it or at least know what they're talking about before they get to court. Not to mention that there is no shortage of attorneys who will work on commission if they truly believe that you have a case. Why didn't he take advantage of that? I'm sorry this guy's mistakes turned out to break the law and make him liable for damages in the way of legal fees, but that's exactly what they did.
I feel for people who can't adequately defend themselves against the tremendous resources of big companies, I truly do. I'm just not sure it is sufficient justification to change the system such that I essentially pay if they can't. As I said before, regardless of the issues involved, this is essentially a dispute between two private entites. You'll notice it's JMRI vs. Asshat, not JMRI and the World vs. Asshat. The outcome effects me very little either way.
This Katzer guy is a cock, and I hope he loses and gets absolutely SLAMMED. I'm just not sure anything that has transpired so far is evidence of some systemic problem with the legal system, and even if it were, the solutions I've seen so far (both your post and from others, this topic and others) seem to leave a lot to be desired in my book.
You just don't get it (Score:4, Insightful)
What the heck is so hard to understand about that?
The beauty of the GPL lies in its supremely elegant hack of using copyright to fight copyright. The ONLY way the GPL can fail is if copyright itself is declared null and void. If there are ANY flaws in the GPL, those EXTRA redistribution rights would automatically be cancelled. The GPL grants EXTRA rights, and if it fails, those extra rights die with it.
"I give you permission to pass around this program based on my copyrighted work, provided that you tell everyone you pass it to that they have this same right under the same conditions to a copy of the source code."
"OK."
"Hey, Joe just said you refused to give him the source code to that program."
"Yup."
"Bingo, you no longer have any rights to redistribute the program based on my source code."
Pretty damn simple.
Re:you'd think, but... (Score:3, Insightful)
Right, because they've managed to get the system into such a state that you can't get justice in cases like this unless you've got a *big* checkbook to throw at it, have made the entire system so convoluted that the average person can't effectively represent himself in court, and hold enough positions of power in the government such that they can ensure the gravy train continues perpetually.
Of course there are decent lawyers out there too. I know several that are wonderful people, and do their best to abide by their conscience when doing their work. They're not the ones that you see on TV though, and they're not the ones that Congressmen and Senators listen to.
What you are saying doesn't make sense (Score:3, Insightful)
So you are saying if a software company sells CDs of their programs to retailers and permits the retailers to redistribute the CDs, then they've forfeited their copyrights? Retailers buy software specificly to resell and redistribute it.
Or how about software companies who make libraries for other software companies to use? If the companies who buy couldn't redistribute the libraries, the software they make themselves wouldn't be very useful. (Have you ever tried to run a program without a library it requires?)
You are essentially saying copyright is now lifted.
Wooo Hoo! Hey boys, fire up yer burners! We gon'a give 50,000 of our friends a copy o' Micer-sorft Winders Ex-Peeeoo!!! And it be all legal too! Yeah!
Re:Should be open and shut case. (Score:2, Insightful)
Sounds alot like Sophism to me
From http://en.wikipedia.org/wiki/Sophist [wikipedia.org]
"The essential claim of sophistry is that the actual logical validity of an argument is irrelevant (if not non-existent); it is only the ruling of the audience which ultimately determines whether a conclusion is considered "true" or not. By appealing to the prejudices and emotions of the judges, one can garner favorable treatment for one's side of the argument and cause a factually false position to be ruled true."
Re:You're missing the point (Score:4, Insightful)
Try run that one past Microsoft's attorneys when you start selling burned CDs of Vista, then come back and tell us how that went.
Re:What you are saying doesn't make sense (Score:5, Insightful)
Ok, IANAL (but I play one on /.). I read the decision that you have sited, and it cannot be applied to a case involving the GPL, for several reasons. First, the contract between Graham and James was strictly an oral contract for distribution rights, many terms of which had to be inferred by the district court. From the decision:
The GPL states explicitly that all rights granted by it are recinded if the terms are violated. So it's pretty simple to demonstrate that the agreement is void.
Further, the decision is based on whether the defendant could conclude that they maintained rights under the license, even though they had violated some terms. Check this out:
The court makes the distinction here - and the GPL makes it explicit. The court is re-stating the affirmation that is used in the GPL itself, paraphrased as "violate the conditions of this license, and you have no rights to the code".
Sorry, but there is NO WAY that that decision can be used to argue that you are not liable for copyright infringement just because the code is being distributed under a license. Your interpretation of the case is just too simplistic.