The Biggest Legal Danger For Open Source? 161
itwbennett writes "Brian Proffitt is blogging about the undercurrent of legal issues troubling the open source world these days and offers up this question: Are patents or copyright a bigger threat to the open source community? Patents are the obvious choice, with inflicting fear being the 'obvious intention of those who have instigated the various legal troubles on open source practitioners.' But the issue of copyright and copyright assignments is no less troublesome, argues Proffitt. And copyright assignment can be confusingly Machievllian, even in open source land."
Patents (Score:5, Insightful)
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But Hitler demands further comment!
Re:Patents (Score:4, Funny)
I read that as:
But Hitler demands furher comment!
(it would have been a delightfully painful pun)
Re:Patents (Score:5, Insightful)
end of discussion. No more comments are needed.
Not quite.
Malevolent organisations which don't respect community commons are the threat. Patents are just one of their tools.
Until those organisations are reigned in, they will continue inventing ways to diminish the value of projects which threaten their income.
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You're effectively arguing: "Patents don't kill open source, people do".
This statement is true in the same way as the guns-related one, and it detracts from the discussion at hand in the same way the guns-related one does.
A decent illustration of how this is irrelevant and counterproductive here http://www.huppi.com/kangaroo/L-gunskill.htm [huppi.com] and I'm sure the /. readership has no problems translating this example to the open source domain.
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Apparently the Slashdhot readership aren't happy to do your job of making your point, because they agree that people kill people and that guns are just a tool. Nothing more. Proprietary software and ideologies are a tool as well. But it doesn't have good purposes, like hunting or defense, and that is where the analogy you made breaks down.
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So if you disagree with an idea then you are Malevolent?
I work for a company that writes closed source software. It it was Open Source I wouldn't have this job. We copyright and patent our work primarily so a competing company who is bigger then us wont steel our work. The fact that it is preventing Open Source software is not a consideration, it is just a side effect. However our company does actively respect Open Source. We use their tools, and give back to their community for the tools we find useful. A
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Not really. You Analogy is wrong.
The removal of slavery doesn't stop the sale of cotton, or the way that people sell cotton. It only changes the process that cotton was made. Open Source is more like you must give away your cotton for free however you may charge for shipping and other value add services, however anyone can go to your farm and pick up their own bails of cotton for free.
So if your business was based on just picking cotton and storing where someone else bought it from you and picked it up the
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All I'm getting from this is that the biggest threat to Open Source projects is the Free Market.
A really free market wouldn't have patents or copyright.
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Re:Patents (Score:4, Insightful)
Exactly - copyleft is simply a (rather oddly named) type of license for copyrighted material. If you want to go all the way with open source by relinquishing copyright and releasing it to the public domain, you're giving up all rights on setting terms on how your code should be used.
Copyrights are not bad things. Companies lobbying for infinite copyright length *cough*disney*cough* so that they can sit around and profit from decades-old content and not innovate or even produce new material are bad things. Never mind the whole cultural contribution aspect of copyright expiration.
At least patents expire - although in software years they might as well go on forever. That's my biggest beef with (non-obvious) software patents in particular - the length of a patent term does not correspond with the useful lifetime of the product or its industry.
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Patents that are actually developed into something useful in their enforcement lifetime.. sure.. but there's plenty of patents that are simply uneconomical to implement so long as you have to include legal costs into the budget. When the patent expires the cheap operators are free to investigate how to make actual products from it.
Of course, for many industries the cheap operators are in China, and they don't tend to take much notice of patents either way. (god bless em).
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FTFY.
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So, which forum allows me to embed Javascript in my posts and then run it?
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nor have they stopped contributing to culture.
Me thinks you have never seen an episode of Hannah Montana.
Re:Patents (Score:5, Funny)
nor have they stopped contributing to culture.
Me thinks you have never seen an episode of Hannah Montana.
Contributing to the demise, is still contributing.
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Many of their biggest successes as films (or at least the underlying ideas for them) are based on fairy tales and folk stories that are out of copyright. The hypocrisy of them fighting so that no work they 'create' can ever be used in the same way is astonishing.
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But just think of the revenue in making an animated XXX feature staring Mickey Mouse! I know you want to see what Minny has under that skirt.
I have a deep suspicion that there are still Disney executives that have been having nightmares about "Deep Throat Minny" since around 1974.
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Like :
Winnie the Pooh - Bought the rights for a pitance, and copyrighted thier version ...so the original cannot complete .etc ... - Used very well known ancient story, and copyrighted thier version and sue anything remotely like it
Aladdin/Little Mermaid/etc
Most disney TV is cable TV filler and not worth watching....not exactly creative genius
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You can bet that the budget assigned to new work is figured on the basis of not only how much it will bring in the first week but also how much they will be able to continue to bring in over five or ten years.
Widespread, pervasive piracy hasn't really hit Disney yet. When we get 30-something mothers downloading (and seeding) torrents for Disney videos so their children can watch them the revenue stream will dry up and they will only be able to spend a far, far less amount producing movies.
This is beginning
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If "Tron: Legacy" is new content then why cannot I make a "Steamboat Willie: Legacy" film?
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Trademark law.
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Companies lobbying for infinite copyright length *cough*disney*cough* so that they can sit around and profit from decades-old content and not innovate or even produce new material are bad things.
I wonder.
The Disney archives are essentially intact -
down to the fragile matte paintings on glass used in films like Bambi.
Amazon.com lists over 3,600 live action and animated titles distributed by Walt Disney Studios Home Entertainment. Most are quite reasonably priced.
Print quality is uniformly excellent and restoration is not dependent on scratching and clawing out funds from a dozen foundation grants.
Preservation does not happen unless there is there is the will and the money to make it happen.
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Can't they just get a new copyright on the restored print? With a short copyright term this would motivate them to restore and rerelease. And their archives are theirs whether they are copyrighted or not as they are physical possessions.
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Honestly, copyleft is just as bad as any other kind of copyright. You're basically ensuring other software writers can't make a profit on improving the program itself.
Here's how it should be done... and this can work without any kind of copyright protection whatsoever. You write a program and sell as many copies as people will buy. Keep the source code a trade secret. When sales drop and you no longer feel like supporting it you release the code base to the public domain. Someone else comes along and improv
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Be OK if the source was actually released to the public domain but I'd guess that peoples pack-rat habits would kick in and they'd keep the source secret just in-case a use materializes.
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Red Hat makes its money from support contracts. I already said that was a niche market exception. If you were a software developer would you sell software you spent years to create to a person for $30 if that person could turn around and legally give copies away to the rest of the world for free?
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Would you use open source software if it meant you'd have to make your own source open? Of course not. That's the problem I alluded to in my original reply.
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I agree with you, without a shadow of a doubt, that these companies are "bad things", but I don't think that lack of innovation or the risk of not creating new material. Disney will always produce new material, because children will always want new material (perhaps production might slow slightly, but that would be
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Patents do not cover "an idea". They cover a specific solution, which for software is a specific algorithm. Find a different algorithm to produce the same (or similar enough) results, and the patent isn't an issue. Yes, that's a problem when you want to exactly duplicate some function (like with a compression codec), but for the vast majority of applications, the algorithms used are well-known and not patented. Once in a great while, some brilliant algorithm will be discovered for doing something that isn't
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Patents do not cover "an idea". They cover a specific solution, which for software is a specific algorithm.
Alas, only in theory. Broad or trivial patents are a real problem and a real danger. Software patents can cover anything from a GUI (see: Microsoft vs everyone using Android) to an "algorithm" to blink a cursor (see: Amiga).
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Nah, the biggest threat to open source has always be FUD 'fear, uncertainty, doubt', also known as scary bullshit, spread by closed source proprietary software companies who have achieved data lock in, all looking to protect their inflated profit margins.
Open source sofftware has been around for a long time now, been tested under fire from M$ 'it's a cancer', 'terrorists use it', 'software hackers prefer it' (that was a big fail ie it was more secure), 'it is communist', 'it is like a virus infecting eve
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Contributors to open-source projects must declare that the copyright on their work belongs to the project. That means it can't be itself copied from somewhere else without license (including tutorials, sample code, etc.). If that assignment isn't made, then any change in the project's licensing requires the approval of all the submitters!
Must? Why? The alternative of "or the change in project's licensing must require the approval of all accepted submitters" seems fine with me. See, as a hypothetical submitter, I might dislike not being consulted would the licensing be changed. On the other side, being required to assign the copyright to the project just from the start is just a fair request: given that I know the condition from the start, I can decide whether or not I want to contribute.
In this regard, my point is: this is a non-story - I
Re:Patents (Score:5, Informative)
Patents do not cover "an idea". They cover a specific solution, which for software is a specific algorithm
Reality doesn't mesh with your statement.
One-click, anyone?
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I don't have to. My assertion is already backed up by the fact that someone else implemented it differently (Barnes and Noble, maybe? Not sure) and was enjoined/sued by Amazon based on said patent.
Again, reality says you're mistaken.
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Uh. I did back up my position. With facts.
Your opinion is that the one-click patent was not overbroad and covered only a specific implementation. I provided a reference to a real, actual, legal decision that said you were wrong. How is that not backing up my position?
Troll.
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Find a different algorithm to produce the same (or similar enough) results, and the patent isn't an issue.
This is only true if the output product of an algorithm is itself not patentable (e.g. it is obvious, not novel, etc), in which case someone is just wasting time and money on the patent process anyways.
Otherwise, according to the doctrine of equivalence an alternative algorithm will still be infringing if it produces identical results. For example its not possible to patent "a compression algorithm" but if someone had a patent on an algorithm for producing a specific kind of compressed data structure (e.g.
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Wait, you see this as a bug?
I see it as a feature. If I contribute to a project then I don't want some arbitrary group of people on a committee at a later point in time t
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How I see it depends entirely on what hat I'm wearing at the time.
As a submitter myself, I see it as a boon. As a manager of a project, I see it as a headache. As an advocate of open-source software, I see it as yet more FUD I have to waste my time explaining to some company who's concerned about wasting resources without profit.
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Copyright is indeed what protects open-source software, but the other details are where trouble lies. Contributors to open-source projects must declare that the copyright on their work belongs to the project. That means it can't be itself copied from somewhere else without license (including tutorials, sample code, etc.). If that assignment isn't made, then any change in the project's licensing requires the approval of all the submitters!
You do realise that this is not a "problem" or a bug in the way copyleft is handled but an intended feature? People who contribute to a FOSS project do so under agreed-upon terms. If the terms change, the agreement has to be renewed.
Besides, many projects successfully went from GPLv2 to v3, OpenStreetMap is in the middle of a license change, Wikipedia is phasing out GFDL in favour of a CC license. It is doable, though it certainly adds complexity for large projects. But again: That is not a bug, it is a fea
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In TFA he doesn't actually state what the risk is with copyrights but I assume the risk is that developers who contribute code to a project may be angered by the choice of licensing used by the project and will no longer contribute to the project. The only example provided in the article mentions some vagueness in the Ubuntu project licensing terms that suggest Canonical may license contributed resources under a license of their choice.
It doesn't seem like much of a risk, it's not as if Ubuntu is the only g
This article has FUD written over all of it (Score:2)
This article is so lopsided that given the long time free software licenses have been around, one must assert malicious intent instead of plain incompetence. Yeah, Canonical and even the FSF require copyright assignments that allow them to release the code under non-free licenses. And yes, even the FSF may turn rogue one day and work against the interests of the community (some claim the invariant sections of the GFDL are already a step in this direction). But why should I really care about this? I can alwa
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1. IIRC the FSF's bylaws are written with the "replicant" issue in mind. That is; if every member of the FSF board was replaced by replicants (from Microsoft, for example), they _still_ couldn't turn the FSF totally evil.
2. AFAIK, the GFDL's invariant sections are like astronauts drawing a giant penis on the moon. Embarrassing and regretted the morning after, but it's there in the historical record, and you can't do much about it now but apologise. Creative Commons seems to have replaced the use case for th
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1. Keep getting mentioned in Slashdot summaries
2. ?????
3. Proffitt!!!!
Patents. (Score:2)
Copyrights are a big threat, but, ultimately unless the open source project is funded by some pretty well off corporate backers, patents represent a far greater threat. Copyright issues can be avoided with the proper licensing agreements. Whether it be the LGPL, GPLv2, v3, BSD, etc.
Patents on the other hand can stop a project cold.
I only have 2 things to say to Brian Proffitt (Score:1)
Proffitt? Dude, SAY it don't SPRAY it.
And anyway you forgot. 1. and 2. Only when you get to 3. can you Proffitt!
Re:I only have 2 things to say to Brian Proffitt (Score:5, Funny)
Here's a better joke using the same material.
Threats to open source:
1. Patents
2. Copyrights
3. ???
4. Proffitt!
5. Other bloggers.
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I wasn't aiming for high brow humour. I don't think that was any funnier than what I said. And you completely missed out "say it don't spray it' (which was my original joke...the 1. 2. 3. thing was just tacked on). Frankly. I think your post got the rating more due to reverse sexism than anything else...*shrug*
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Mod her, I mean *cough* "parent" up! Oh, and by the way, will you marry me?
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So first you call her mommy, then ask her to marry you?
Kinky. I like it.
Brain Profit (Score:2)
Its all about money (Score:1)
As they say, "You will never know who was really right. But you will know who had more money."
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Open Source generally doesn't have a bankroll funding it. It has a community. Communities of like-minded individuals don't usually have the finances or the will to defend (or instigate) legal battles.
As they say, "You will never know who was really right. But you will know who had more money."
Don't bet on it: communities of like-minded individuals may have enough money to sustain a "legal arm" to protect them - e.g. EFF [eff.org]
EFF is a donor-funded nonprofit and depends on your support to continue successfully defending your digital rights. Litigation is particularly expensive; because two-thirds of our budget comes from individual donors, every contribution is critical to helping EFF fight — and win — more cases
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If this was true, Open Source would have been dead years ago.
1: There are, in fact, large companies bankrolling it. Ever heard of IBM? RedHat? Novell? Canonical? Sun... OK, forget that last one.
2: See the other response, regarding the EFF. There are now a lot of individuals and businesses that depend on Open Source to make a living. If someone threatens that, there's a good chance they'll fight back.
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Sun... OK, forget that last one..
Which illustrates how fragile this support is. If someone doesn't like an open source area they can just buy the company behind it, and the FUD will scare people away from the project
Proffitt's oppinnionns...... (Score:3)
......maayy suufferr frromm aa sttuuckk kkeyyboaardd annd//orr mminddssett.
What about THE BSA who may count by system (Score:2)
What about THE BSA who may count by system even when windows is not on them.
Step 3 (Score:1)
1 - Make blog with ads
2 - Get slashdotted
3 - Proffitt
Renegging on the GPL (Score:2, Interesting)
Ok, patents are the biggest threat, but here's another.
Suppose Larry decides he's not happy with just changing the license on one of the dozens of open source products he's acquired and decides to actually start demanding payment for use of earlier versions of the software.. Does a copyright owner have the legal right to retract an issued license? Does that right apply to the GPL? This is a massive blindspot in copyright law.
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B) It's generally understood that the GPL is non-revocable for that existing codebase and any forks but AFAIK that assumption has never been tested in court because sole rights holders are so rare for anything that matters.
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It was also never tested in court that you are not a fuckheaded moron.
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Suppose Larry decides
Larry who?
Suppose Larry decides he's not happy with just changing the license on one of the dozens of open source products he's acquired and decides to actually start demanding payment for use of earlier versions of the software.
Since me, as a licensee, acquired the rights under certain conditions (a set of mutual obligations between parts, obligations protected by the copyright laws [1]), the other part of the contract cannot unilaterally modify the contract in her/his benefit. Which, if happens, would creates another agreement between us.
[1] GPLv2 point 5: You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its der
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Larry who?
Get off my lawn.
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First off you are going to get a lot of "no" below. That's not true, the actual answer is sort of. For example there is a notion of "fundamental breach" which would allow them to get rid of the license. For example if you were issued a license under the GPL and you proceded to not honor it by distributing a binary without source they could declare you in fundamental breach and revoke the entire license.
Alternately you could get so
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Well, seeing as you're the only serious reply, I guess we should have a conversation.
For normal (proprietary) licenses it's already been established that a copyright owner can revoke the license at any time simply by giving notice to the licensee. (Wood v Leadbitter).
They can legally do a bait and switch, handing out permissive licenses, waiting a few years, then revoking all the licenses and demanding payment from anyone who continues to copy or modify the software. This is established law in Australia (
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For normal (proprietary) licenses it's already been established that a copyright owner can revoke the license at any time simply by giving notice to the licensee. (Wood v Leadbitter).
Your quotes are wildly misleading. A proprietary licence is a permission to enter land and may be express, implied or contractual. Like say, I can invite you into my home and if I ask you to leave you must leave. Implied permission is much the same, it ends the moment you end it.
Contractual obligations are different, they're binding agreements to both sides. You have no right to terminate a land lease just by saying it, that's breach of contract. I can take you to court, and one of the things I can do is de
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There's no consideration for a free software license.. therefore it isn't a contract.. in any court. Please, you really should talk to a lawyer sometime as getting your legal advice from the Free Software Foundation is a great way to be steered down the garden path (trust me, I've been misled for about a decade).
As for licenses that do have consideration, the copyright owner is still permitted to terminate them. If you suffer damages you can sue the copyright owner for those damages. That's how civil law
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I suggest you do a web search on whether the GPL is a contract. Open Source Business Conference, San Francisco, March 17, 2004; had a panal on this matter and opinions were heavily divided. The vast majority of lawyers believe that redistribution is a consideration since licenses have value generally under the law.
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I agree with you on this, most lawyers agree that the GPL goes beyond copyright and asserts a contract. So far the FSF's position is that it is asserting rights under copyright law and not creating a contract. The reason being is that contract law, is more complex in terms of damage and breach while copyright law is simply; you can't copy unless you are licensed. So you can't just assume that point that there is a contract in place while at the same time using the FSF's re
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I don't know Australia law, so I have no opinion one way or the other. The Journal of the National Society for Computers, September 2002 Issue 49 specifically addressed this case for Australia and felt that the bare permission was so unambiguous in the case of the GPL that it wouldn't apply. In the US you have to declare a breach, and that's going to require preponderance of the evidence.
Now of course there is nothing to prevent intimidation using the threat of a suit. SCO was somewhat successful in g
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Right but if you downloaded another copy you could argue that's a new license.... That's why revocation is important.
*DRM* and patents, not copyright and patents (Score:5, Insightful)
DRM and signed hardware is the biggest legal threat beside patents.
If we liberate the PC, only to find that people are doing their computing on handheld computers (such as phones) and games consoles which won't boot if the software's not approved, then we'll be shafted.
The answer is (as it always was) that we have to educate people about what sovereignty/liberty/independence means for computing, and that having freedom is valuable. That takes years (ask RMS), but it's the only way to win successive battles. There's no point in defeating some current problem if the same attack will succeed later under a different guise.
After DRM and patents, the big problem is centralised social networking, where people do their computing on remote servers which they have no control over.
I think that is overstated (Score:2)
... and while you are at it ask RMS what he thinks about passwords being used to lock people out of systems. You may find he's looking at this from a very different mindset to your own.
Stuff that is locked down to stupid levels is not going to sell to the point where it obliterates things that are sold with the convenience of no DRM as a selling point.
Software, business method and other insane patents covering wide areas of similarity on the other hand are a very stupid obstruction. It's a case of
Copyrights are not as big a deal as patents. (Score:4, Insightful)
With copyrights, you can write around the infringing part et voila, you no longer infringe. You can do this a lot easier than writing around a patented algorithm which may lay at the core of your software.
SCO brought up many busted hypotheses why Linux infringed on SCO IP, up to and including "negative knowledge" - i.e., "don't do it that way". None of it stuck. "Similarity" is not enough. Header files are not enough. Some evidence of word-for-word copying in the source code must be there for the accusation of copyright infringement to stick at all. And even then, it's proportional to the amount of infringement. And *even then* courts want you to hammer it out privately before ever going to trial. Courts frown upon plaintiffs going to court without letting the defendant try to mitigate what might be wrong.
And to this day, they have still not shown any copied code from Unix in Linux, on their path to their "utter destruction" as Darl McBride so succinctly put it. And Linux has come out only stronger because of the ordeal while SCO's entire market cap is 2.1 million on the pink sheets.
http://www.smallcapdirectory.com/Listing.aspx?CompanyId=21987&Mode=Profile [smallcapdirectory.com]
Apple sued Microsoft over UI for "copyright" and lost - just because it looks similar doesn't mean it's the *same*.
Patents are more difficult to defend against. Because these days, patents cover ideas and general mock-ups (design patents) with no regard for prior art or obviousness in the eyes of someone skilled in the art. That last bit has especially been removed from the "obviousness" test. It seems like patent examiners lowered the bar to "Dumb and Dumberer" for obviousness.
--
BMO
Value of SCO (Score:2)
Someone/some people believe SCO is worth $2.1M? Wow. It might have been, when they declared bankruptcy, but they've spent rather more than that on the bankruptcy since then*, and if I recall correctly are trying to sell off everything they have left which might be of value for $0.6M, but are in legal difficulties because Novell says the sale (of licenses from Novell) can't go through without their approval.
* No, this doesn't make any sense to me either.
(Note: everything I know about SCO I got by reading Gro
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2 million for a market cap is a pittance.
The market cap is the share price times the number of outstanding shares. The share price is just over 3 cents.
And if you buy anything on the pink sheets, your official name is "Bag Holder."
As for knowing all there is to know about SCO from Groklaw, there are other places on the net to get information. One of them is the SCOX.PQ group on Investor Village (formerly of the Yahoo board), who PJ always steers people away from because she's paranoid. She has a particul
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Linux really had nothing to do with it. Anything the layman finds complicated would have worked.
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Darl was just a stooge hired by Ralph Yarro.
Smart enough to follow through with a plan. Too dumb to question the plan - same for Kevin.
--
BMO
None of the above (Score:2)
There is no significant threat to open source, legal or otherwise.
Know that we are.
Know that we are well.
Fear not, for as we are we will be.
test case (Score:2)
Make something that violates a software patent, then file a declaratory judgment action seeking to determine the invalidity of the patent--after you've built up a big war chest. Come at the opponent (MS, IBM, Oracle, etc.) Straight On.
Why not? The corporations always avoid the showdown out of self-interest.
Eh? (Score:2)
What a strange article. Lots of words, but no clear meaning comes through to me. He seems to be taking one sentence from a Canonical license and saying that it proves there's lots of problems for open source because copyrights fwibble a gwabbit. Well, if he's making up stuff I might as well start making up stuff too. Copyrights are what keep open source open - i.e. you can't ignore the license and stop other people using the open source code you distribute without breaking copyright law yourself.
I reall
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proves there's lots of problems for open source because copyrights fwibble a gwabbit
I believe you've hit the nail on the head.
The problem is that some people want an orange and others want a potato. Unfortunately, being human beings, people who want oranges want potato people to buy their oranges and potato lovers want to impost their spudtastic diet on orange lovers. Governments are created, wars are fought, dynasties fall, and then someone discovers the strawberry and another person the tomato.
Now, what w
Copyright (Score:2)
FUD (Score:2)
The bigger legal threat to open source is not the actual legal threats, it's the fear of misunderstood potential legal threats.
That's kinda' ironic (Score:2)
I can understand why the title talks about Open Source---it would look weird for a "Mr. Proffitt" to talk about "Free" software.
[For the uninitiated: the FSF, fsf.org and gnu.org, is about software freedom and software that's free as in free speech. It tends to have a price of zero, but that's a consequence rather than a definitional requirement.]
What about Google & other 800lb gorillas? (Score:2)
Google has meddled in open-source projects (i.e. Android) in ways that are surprising:
1. Closed source 3.0 (at least for now)
2. Google has filed cease and desist against CyanogenMod
Either it's open or it isn't. If 800lb gorillas can just walk over open source projects at will, aren't they all at risk?
liability (Score:2)
I worry about liability. While the GPL and other licenses can disclaim liability all they like, a litigious user could still file a lawsuit, forcing the developer to spend money defending themselves. I have a Firefox extension that I've avoided releasing for exactly that reason.
A contributor must assign copyright to Canonical? (Score:2)
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How to spell the guy's name isn't the important bit of information...