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.'"
Read the brief they filed - he *may* be right (Score:1, Interesting)
The Ninth Circus may have doomed OSS.
IANAL, though.
Get the devil to help (Score:4, Interesting)
I Think That SCO Tried This (Score:3, Interesting)
This half-assed defense also presumes that money is the only legitimate cause of action in the courts.
Rong.
Re:Hate to break it to them (Score:5, Interesting)
But the counterargument is that since they're self-evidently not following the terms of the license, then they don't have a binding contract, hence we're back to a copyright violation.
So, prediction: they're going to lose.
Another example (Score:2, Interesting)
It happens all the time. Consider the following example in which a private author made a post to a forum [maps.org] debunking an article which attempted to associate marijuana use with an acute risk of cardiac arrest. That post was subsequently misquoted and the subject line taken out of context [heartdiseaseguru.com] in the interest of expressing the exact opposite opinion, promote a product, sell advertising space, and defame the original author by putting words in their mouth. When human resources representatives came across the heartdiseaseguru.com page while scraping the web for employees' e-mail addresses, the private author subsequently experienced a complete loss of credibility in the workplace due to: an alleged heart attack which wasn't reported in the preemployment screening (which never happened), alleged marijuana use (which the employer would never have known about), and a propensity for making completely unsubstantiated claims (that marijuana use is a cause of an acute heart attack). The heartdiseaseguru.com web page is regenerated each time it is loaded. About one out of every five page loads will result in the story on the side reading with a line "Steven Maximilln maximilln at hotmail.com reported using the drug within an hour before heart attack". This implies that the author does use marijuana and has had a heart attack--neither of which is true according to the original post on the MAPS forum.
Thankfully the JMRI team has legal counsel available to them. Let's hope that they are able to secure a true and just judgement which will preserve their rights to their own code. The private author in the example above endured harassment, loss of promotion options, and eventually became homeless. Every attorney contacted to remedy the situation has asked for a retainer fee to even look at the two web links cited above.
The most troublesome part - lawyer comments please (Score:2, Interesting)
Hello!?!? This alone stands to kill any and every small Open Source project in California. I know of a few here, in Silicon Valley no less.
Could someone with a legal background (or even reasonable knowledge here) please explain how this could possibly happen, and what defense on Open Source project has!?!?!
Thanks.
you'd think, but... (Score:5, Interesting)
Yeah, right.
You'd think- but the asshole (Matt Katzer) filed an anti-SLAPP lawsuit in response to a lawsuit seeking him to cease and desist (he was hounding a government research facility that was employing one of the JMRI authors and JMRI had enough)..basically won it, and got over $30K for his attorneys...and that's AFTER their claims for legal fees were determined to be excessive/unreasonable, and reduced!
He's run out and filed patents for stuff days after someone else announced they developed it...then turned around and demanded hundreds of thousands of dollars in royalties. Made absolutely insane, blatantly false assertations.
Both his lawyers should be disbarred based on the level of falsehoods present in court filings. EFF, where the hell are you? I'm always hearing about I should donate to the EFF, but I don't see them doing a fucking thing for JMRI to fend off this sleaze.
Re:Hate to break it to them (Score:2, Interesting)
No. The license is a contract. Their violation of the license means that they are in breach of that contract, it does not mean that a valid contract does not exist.
Applying contract law, instead of copyright law, would seem to be to the defendant's advantage, because, in order to recieve damages, JMRI will have to show a material breach of contract. That is, they will have to show that they suffered harm. That may be made more difficult by the fact that they have been licensing the software free of charge, because JMRI can't argue that, by defendants distributing the software in violation of license, JMRI is losing revenue from selling licenses.
Re:Hate to break it to them (Score:4, Interesting)
As I understand it... (Score:3, Interesting)
Because you have a transferable token, then it would appear - to my untrained eye - to be a transaction that has involved the payment of that token.
Now, as I understand it, the reason general "free distribution" cases wouldn't be covered is that there is no such token payment and therefore no instrument by which copyright can be carried. This would explain why the general case is NOT covered, but would also mean that this case unquestionably is.
There is another aspect to this. A "Gentlemen's Agreement" requires an agreement between two individuals to be witnessed by an independent third individual. If there is a Gentlemen's Agreement to honour the license as a statement of copyright, then I believe there would be a case for claiming that copyright would apply whether or not it would normally have done so.
Ok, so we have the two parties. Is there an independent witness to an agreement? That one might be interesting to argue. I'd claim that Richard Stallman knows neither party but DOES know what the GPL means and can therefore be an independent witness to the effect that by accepting the GPL, the licensee has accepted the Gentlemen's Agreement. Not sure how well that would stick, though. My suspicion, though, is that if the judge reads and approves of the GPL as a legal instrument, but is 50-50 as to which way to go, the Gentlemen's Agreement argument might be enough to swing it, if such agreements are recognized in that State.
The last possibility is that if the licensee claims that they're not bound by copyright, and since copyright is the sole instrument to allow the licensee to use ANY GPL product whatsoever, Stallman may just declare the licensee Accursed and have them prohibited from using or obtaining ANY GPL product whatsoever, for all of eternity. (Under the license, that IS the standard penalty for blaspheming the GPL in this way.) This would not impact the current lawsuit as much as it opens the licensee up to a lawsuit for EVERY GPL product they use, distribute or possess. Quite simply, the costs involved in defending a massive distributed denial-of-sourcecode attack could cause some serious damage, and because it is an explicitly stated curse, not a single one of those lawsuits would likely be thrown as frivolous.
Re:Should be open and shut case. (Score:4, Interesting)
I used to think that a career change from software developer to lawyer would be a fairly easy and natural progression. After all both professions are all about understanding the rules and figuring out the more optimal paths that both follow the rules and produce the desired result. It ought to be a cinch.
Except for one crucial difference.
In the software world each code path either works or is broken - there may be multiple paths that produce the same result, but their correctness is black and white. In the legal world, nothing is black and white. What "works" one day, may be broken the next day depending on who the observers are (judge, different lawyers, etc).
That kind of behavior is so totally effed up from an engineer's perspective that only an insane engineer could ever become a good lawyer. The law is really just a huge collective bong party - everybody toking up and then speculating out loud about their deepest philosophical insights into the universe. It all comes down to how well you can convince other people that the words of the law mean what you want them to mean and not what someone else wants them to mean.
People all laughed when Clinton (a lawyer, like most politicians) made that statement about "it depends on what the meaning of the word 'is' is" But given the context that the law is all about arguing over the meaning of words, it is perfectly natural that he would say that. Still totally effed up, but in a perfectly natural way.
Aren't they claiming they've been given a license? (Score:5, Interesting)
They certainly don't assert that copyright doesn't apply for Free Software or Open Source. This same exact argument could be used on a shrinkwrap EULA "violation."
I guess it does raise a technical issue, though. When a creator and a user don't actually meet, sign contracts, etc -- when licensing gets implied -- how do you decide it if actually happened?
For example, with either a Microsoft EULA, or GPLed Linux, or whatever, at some point a user may decide to do something that is not Fair Use under copyright. Maybe they want to modify the software and sell 10 copies to someone else (in the case of GPL) or maybe they want to .. uh .. actually I can't think of any rights that MS EULAs grant, but let's ass/u/me that there's some sort of reason a person might want to agree to it. (?!)
When the user goes ahead and does the licensed copyright violation (e.g. selling 10 copies of Linux), it is argued that either they have violated copyright, or they have agreed to the license. Now let's say they are also doing something that is not permitted by the license (such as selling copies of Linux w/out offering the source). So now, they're either violating copyright, or they're violating the license. How do you know which one they did? Just like Microsoft's relationship with their users, you don't have any evidence that they ever accepted the license.
If they sue you for copyright violation, just say you accepted the license -- and then they need to sue you for breach of contract instead. If they sue you for breach of contract, say you didn't accept the license, and then they'll have to sue for you copyright violation instead.
Without evidence of what happened, you make 'em sue you twice. Of course, the second time (assuming they have any lawyer-money left), they've got you.
Distinguishment: (Score:3, Interesting)
The determination in the Sun Vs MS case wasn't that Sun didn't have a copyright case because of the contract -- but rather that the judge didn't distinguish that MS was violating copyright (as opposed to contract) before (s)he issued an injunction under the (far more lax) rules of copyright infringement.
The GPL, on the other hand, simply says that I only have the permission to distribute MySQL if I'm following the terms of the license. Thus, if I'm not following the rules of the GPL, my only defense is that I'm not violating copyright. i.e. a GPL case is solely a copyright case, with the defendant having only two credible defenses:
- I'm not distributing your software (and thus not violating copyright), or
- I'm following the GPL, so you're estopped from suing me.
IANAL, but I think that claiming that a GPL suit isn't about copyright is going to be a seriously uphill battle (as in almost vertical).Re:What you are saying doesn't make sense (Score:4, Interesting)