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The Open-Source Train Moves Forward
August 15, 2008 8:04 PM Subscribe

What could be less important to the blue than a news item involving model railroading and Java? Yet in an important decision, a U.S. Appeals court has ruled that that the terms of the Artistic License are enforceable copyright conditions. "For non-lawgeeks, this won't seem important but this is huge," said Stanford Law Professor Larry Lessig.

The Java Model Railroad Interface is an open-source project of software in Java for use in controlling model railroads. For the past few years, according to the JMRI website, the project and its leader have been under legal attack by a commercial competitor, who has allegedly used project code in a commercial product in violation of the license terms, has received a patent without proper disclosure of prior art, and has engaged in litigation against the JMRI project and its chief maintainer.

Is this an important victory? Lawrence Lessig seems to think so.

posted by Artful Codger (41 comments total) 7 users marked this as a favorite

How ironic/appropriate that this should happen right after the passing of Engineer Bill Stulla, the L.A. kiddie show host from the '50s/'60s who did so much for model railroading in his time.

No, honest. I'm being serious here.

+++++++++
+++++++++ .
posted by wendell at 8:21 PM on August 15, 2008

I was going to summarize for skimmers, but Mr. Lessig did an excellent job:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

This means that if you write code and release it under the free licenses that have conditions, like the GPL, people can't break your conditions and keep using your code. If they do, they're violating copyright, and with the incredibly draconian copyright law in this country, no entity could do that and survive. The more the RIAA et al tighten their grip, the stronger the various flavors of Free Software become.

Having operating systems and program suites that can't be hijacked by anyone is arguably a lot more important than being able to freely copy movies and/or music, so the RIAA's assholishness may be helping you more than it's hurting.
posted by Malor at 8:22 PM on August 15, 2008 [6 favorites has favorites]

I've read the long history and a few of the avalanche of documents, and goddamn — Katzer goes way further than any shithead patent troll I've ever heard of.

Harassing people over your bullshit patents is pretty bad, and wholesale infringement of the liberal licenses of communal projects is pretty bad, combining the two is a whole new level of asshattery:

Filing software patents on other people's code (which you are ripping off)
Suing them for patent infringement
Claiming that liberal copyright licenses are invalid without contract (because you're giving it away!)
???
Profit?

It's really not clear how the hell Katzer makes a living being such a douchebag — do people in this insular community actually buy his software, with this cloud of asshattery surrounding him for a decade?

Not sure about this particular community, but there are more than a few douchebags out there who have stolen the work of OSS developers by repackaging it as their own.
posted by Blazecock Pileon at 10:04 PM on August 15, 2008

There's not that much room for rulings that favor the asshat. The courts would have to rule that:

1) You can't put restrictions on your license which require people to give away their changes,
2) You also can't say "if part of this license is invalid, the whole thing is" which all the Free licenses say.

Having an error or unenforceable clause in a license essentially forfeit your copyright entirely seems like something that would really mess things up for a number of industries, and is basically not going to happen.

That's not really the issue here -- or rather, the elegance of the argument is that it avoids exactly those problems. The problem here is that it's hard to hold parties accountable for willful misrepresentation when there's no clear chain of title or possession, as is generally the case with OSS licenses, and it's hard to prove copyright violations without that.

Moreover, if there's no direct misrepresentation between the parties (which there can't be), then at best the infringing party just pays for damages -- no penalty for willful violation, no statutory damages, no injunctions. But paying at-cost, and even then only if you lose, isn't much of a deterrent.

The holding here is that the OSS license essentially functions as a waiver of copyright-suit privileges unless there's a violation of the license, at which point the protection would revert back to the default state, which is copyright protection. This really isn't a revolutionary result, though I'm a little surprised the the Federal Circuit reached it. Will be interesting to see what happens next.
posted by spiderwire at 10:31 PM on August 15, 2008

Hooray pending appeal.
posted by Clave at 10:33 PM on August 15, 2008 [3 favorites has favorites]

Also, there are still plenty of creative ways that a Court could rule around this without upending contract law entirely -- the obvious route, I think, would be simply be a strong holding that monetary damages are the appropriate remedy because of potential chilling problems, etc. That would pretty much moot the issue, it wouldn't be a doctrinally disagreeable result, and it could be limited such that only open source licenses would really be affected -- and there's already no shortage of decisions like that.
posted by spiderwire at 10:37 PM on August 15, 2008

If they do, they're violating copyright, and with the incredibly draconian copyright law in this country, no entity could do that and survive.

but

[] paying at-cost, and even then only if you lose, isn't much of a deterrent.

Depends on the financial strenght of the affected party, so for some people at-cost is too much. Yet for the relatively affluent societies, it could sometimes be even better than paying upfront, expecially if the license holding party is a little guy/company that doesn't have enough resources to fight.
posted by elpapacito at 3:38 AM on August 16, 2008

The holding here is that the OSS license essentially functions as a waiver of copyright-suit privileges unless there's a violation of the license, at which point the protection would revert back to the default state, which is copyright protection.

GPL, its various OSS cousins, and Lessig's CC are copyright licenses which are based on existing copyright protection and existing copyright law. There is no "default" to copyright protection: it's copyright all the way down.

The more the RIAA et al tighten their grip, the stronger the various flavors of Free Software become.

The mob may grow larger, but this ruling affirms that the walls of the copyright Bastille are as firm as ever: licensors have control over how their work is used downstream whether "open" or restrictive.

It is no small irony that Professor Lessig is using copyright law to undermine copyright use and by so doing he strengthens the law for other more restrictive uses of copyright.

But one can only use the tools one has.
posted by three blind mice at 3:50 AM on August 16, 2008 [1 favorite has favorites]

Infringing copyright costs $100k per copy. No business can do that and survive.
posted by Malor at 5:12 AM on August 16, 2008

Oh, and here's the basic deal with free software:

Copyright covers the right to make copies of things. You don't have any right whatsoever to copy things under copyright, except A) for a few 'fair use' exceptions, and B) as the owner of the copyright determines.

If you want to use free software, you can. Nobody's going to come after you, no matter what personal use you make of it. There's no evidence that you've accepted any licenses, and, well, nobody really cares whether or not you run Linux or Firefox anyway.

But, as soon as you start distributing the code, you automatically indicate that you have accepted the license under which it was granted. You don't have any default right to distribute the code unless you fulfill the terms that the licensor set. If you aren't fulfilling your obligations, then you have no right to copy it.

So, if you're in default of the copyleft provision, and you get caught, then either you have to bring yourself into immediate compliance, or cease distribution of the code. You may also face punitive damages, which can be immense. Violating copyright for profit in this country is looked at very, very dimly. As far as I can determine with my limited legal expertise, there's no difference before the law between Cisco distributing, say, Cheapo Peachy Keen Router that runs Linux, but refusing requests for source code, and a pirate outfit copying and shipping CDs to this country. Both are infringing copyright for profit, and at $100k PER COPY, that's a staggering liability.

From what I understand, the FSF and other free software authorities are typically quite friendly; they simply want you to live up the terms of the deal you implicitly agreed to by distributing products based on their code. Usually, they just write a letter, the company says, "oops!", and fixes it. In the relatively rare cases where it's gone to court, they typically settle for legal fees, compliance, and a moderate donation to a free software outfit of the defendant's choice. Again, I don't think they're terribly draconian.

The basic copyleft theory is so strong that I'm not aware of any of those cases actually making it to judgement; the sued party has always settled. This is the first time there's been an actual judgement. It worries me a little that the lower court got it wrong.

Hopefully the Supremes will agree that copyleft is a correct interpretation of the law. They would have to explicitly take away rights from copyright holders to make copyleft not work, which they'll probably find too expensive to be worthwhile. I suspect their law clerks will understand open source well enough to get them to produce the correct decision, which is not to change anything. Leave the law as it is already.

Free software has some very, very big backers, so there are big corporations on both sides of the divide. It's not like the typical big-companies-versus-the-people type case, where the people almost always lose. It's big companies versus big companies, and it just doesn't seem likely that the Court will upset the applecart.
posted by Malor at 5:40 AM on August 16, 2008 [2 favorites has favorites]

It worries me a little that the lower court got it wrong.

Exactly my worry. Worse, it sets up the sort of thing that the Supreme Court likes to grant cert to -- A says X, B says !X. If A and B had said the licenses are good, the Supremes would probably just refuse cert and let the precedent stand.

OTOH, if it is appealed, granted cert, and the court holds with the Appellate, it's the slam-dunk win for OSS. At that point, most of the OSS licenses will be legally solid, vulnerable only to political whim.
posted by eriko at 7:58 AM on August 16, 2008

The JMRI-Katzer situation seems to represent the extreme end of breaking an open-source license; it's not just a license violation, it's also an attempt at completely fucking-over the open-source project and its principal contributor, including improper use (pronounced "theft") of JMRI intellectual property, abuse of the patent system, and breathtakingly unethical litigious behaviour.

I believe it's a very important case. Many detractors of open-source or copyleft-type licensing allege that this licensing model cannot work and will undermine the current system, remove incentives to innovate, lead to the collapse of capitalism, cause world famine, cats sleeping with dogs, etc etc. The precedent that's possible from this case would clearly demonstrate that open-source licensing can clearly compete on their turf and is compatible with and enforceable under existing laws.

To be most effective, this has to remain a decisive victory, with a full judgment in favour of JMRI, the offending products recalled or full compensation for the licence violation, and punitive damages awarded. If Katzer can instead fight this to a stalemate, it would mean that any company with a 6 or 7-figure war-chest can violate a licence and simply litigate the OS project into the ground.

In Katzer's shoes, and assuming he's fighting this with his own money, I would think the best course at this point is to stop litigating and settle quietly, to avoid being the poster-boy for capitalist greed and stupidity. My fear is that he's being funded by bigger players who do not want a clear precedent for OS set, so they want this dragged out and muddied as much as possible.

(So, Java and model railroads can help change the world! Who knew? I think I'll go play with my trains for a bit.)
posted by Artful Codger at 8:17 AM on August 16, 2008 [1 favorite has favorites]

It's really not clear how the hell Katzer makes a living being such a douchebag...

He makes it up in volume.
posted by darkstar at 10:16 AM on August 16, 2008 [1 favorite has favorites]

GPL, its various OSS cousins, and Lessig's CC are copyright licenses which are based on existing copyright protection and existing copyright law. There is no "default" to copyright protection: it's copyright all the way down.

I was unclear about this:

The "default" state in the sense I meant is "copyright protection exists and is enforceable against infringers." If the OSS licensee acts under the terms of the license, they are essentially in a safe harbor that protects them from suit. Once they violate the license, the safe harbor is no longer operative, and they return to the default state, which is "can be sued for infringement."
posted by spiderwire at 10:21 AM on August 16, 2008

*blank look*

Don't cross the streams. Okay. Good safety tip. Thanks, Egon.
posted by ZachsMind at 10:40 AM on August 16, 2008 [1 favorite has favorites]

thanks to malor & artful codger for your posts. They were informative and I learned a lot.
posted by vurnt22 at 11:11 AM on August 16, 2008

Ray, when someone asks you if you're a god, you say, "Yes!"
posted by spiderwire at 1:03 PM on August 16, 2008

Linux Weekly News has a very good writeup on this topic. It's a little more complex than I realized; apparently the Artistic License in question is weakly worded, and it was pretty touch-and-go. Reading between the lines, I'm wondering if perhaps the Appellate Court is siding with open source because they like open source, and not because the Artistic License is actually a proper copyleft. If the Supreme Court does strike it down, though, it may not affect the GPL. The GPL is much tighter.

Note that LWN is a pay service, and I've used my subscriber status to generate a free link to the above. It's normally behind a paywall for one week after posting. If you're interested in Linux and Open Source, this is a very good site. I strongly encourage you to check it out, and possibly, subscribe. They've been at it more than ten years, and provide some of the best open source editorial content available, but they're still kind of scraping by, and need more subscribers. (I have no relationship with them, other than being a subscriber.)

eriko: the Supreme Court is generally interested in taking cases when they have conflicting opinions in different circuits. That is, if two separate appellate courts say different things, they're likely to get involved. I don't think they care all that much if a low court has one opinion but their superiors have a different one. That's not a conflict: the low court is wrong pretty much by definition.
posted by Malor at 1:18 PM on August 16, 2008 [2 favorites has favorites]

Infringing copyright costs $100k per copy. No business can do that and survive.

As I understand it, the big win in this case for free licenses is they determined that the breach of license would have to face the criminal penalties (the 100K you mention), instead of civil penalties (which would more or less amount to $0, which is all the authors of JMRI were going to sell the software for).
posted by rodgerd at 6:50 PM on August 16, 2008

For the lawyers out there. Victoria K. Hall, the attorney who represents the winning appellant (Mr. Jacobsen), is three years out of law school and is a solo attorney. Who says you can't accomplish amazing things if you have courage?

[Congratulations Vickie! I'm so proud of you!]
posted by ferdydurke at 9:45 PM on August 16, 2008

This means that if you write code and release it under the free licenses that have conditions, like the GPL, people can't break your conditions and keep using your code.

Well, according to the theory of the GPL, you can use the software, but not distribute. In fact the GPL explicitly allows you to use the code without agreeing to the license, so long as you don't redistribute it.

The courts would have to rule that:
1) You can't put restrictions on your license which require people to give away their changes,
2) You also can't say "if part of this license is invalid, the whole thing is" which all the Free licenses say.

Having an error or unenforceable clause in a license essentially forfeit your copyright entirely seems like something that would really mess things up for a number of industries, and is basically not going to happen.

Of course not, which is why free software licenses say nothing like that at all.

All free software licenses say is that if you modify the code, you can't redistribute the original code without agreeing to the license terms. You could distribute patches if you wanted too.

But, as soon as you start distributing the code, you automatically indicate that you have accepted the license under which it was granted. You don't have any default right to distribute the code unless you fulfill the terms that the licensor set. If you aren't fulfilling your obligations, then you have no right to copy it.

Close, but not quite. The license is a restriction on the author. By putting the license on your code, you're agreeing not to sue anyone who infringes copyright unless they violate the license. Free software licenses restrict the authors, not the users/distributors. (at least that's the correct way to think about it. In order to avoid violating the license, the distribute would probably have to implicitly 'agree' not to violate it)
posted by delmoi at 11:45 AM on August 17, 2008 [1 favorite has favorites]

For the lawyers out there. Victoria K. Hall, the attorney who represents the winning appellant (Mr. Jacobsen), is three years out of law school and is a solo attorney.

She also spent nine years in the chemical engineering and software industries before that. I would imagine her experience and familiarity with the software industry helped a great deal in this case.

That, and the fact that the copyright violater in question (Matt Katzer) and his partner-in-crime, attorney Kevin Russell (and I don't mean that facetiously) are both giant gaping assholes.
posted by Civil_Disobedient at 2:41 PM on August 17, 2008

Here's the GPL v3: http://www.gnu.org/licenses/quick-guide-gplv3.html

delmoi: All free software licenses say is that if you modify the code, you can't redistribute the original code without agreeing to the license terms. You could distribute patches if you wanted too.

Um, the GPL says that if you modify the code, you can only distribute your modifications according to the terms of the license... mainly that you must also distribute the source code.

Here's another facet, added in v3; quoting from A quick guide to GPL v3:
Whenever someone conveys software covered by GPLv3 that they've written or modified, they must provide every recipient with any patent licenses necessary to exercise the rights that the GPL gives them. In addition to that, if any licensee tries to use a patent suit to stop another user from exercising those rights, their license will be terminated.

Hopefully this makes it clear that you can't use GPL'ed IP in your product, then turn around and lock that up with a patent or other restriction.

The license is a restriction on the author.

Huh? As some of this thread's links point out, this Appeals court ruling helps underscore the fact that an open-source license is a copyright, not just a contract. If one violates any term of an open-source license, it's automatically a copyright violation therefore a CRIME, not merely a breach of a commercial contract that must be pursued through expensive litigation.
posted by Artful Codger at 2:41 PM on August 17, 2008

As some of this thread's links point out, this Appeals court ruling helps underscore the fact that an open-source license is a copyright, not just a contract.

No, a license is only a means of conveying an ownership interest copyright, not a copyright in itself. A copyright isn't a thing," it's a bundle of legal rights. This is akin to saying that the title in a piece of land is a house.

Even if "not just a contract" is interpreted pretty charitably, you have it backwards -- the license is an agreement to not enforce the copyright, not a transfer. And if it were a transfer, the holding wouldn't work, because the transfer would have to be reversed.

If one violates any term of an open-source license, it's automatically

No license violation is "automatic." You have to prove it in court.

Moreover, this is particularly true in the case of an "open-source license," where there's almost never privity between the parties. The law there's not even particularly clear, which is actually the reason why this holding is potentially important.

a copyright violation therefore a CRIME, not merely a breach of a commercial contract that must be pursued through expensive litigation.

Copyright violations are civil, not criminal, at least on face. Your statement is inaccurate at best, and probably just flat wrong. The criminal penalties in the federal statute are discretionary and have to be litigated, and they never are -- certainly not against corporations engaging in a monetary transaction.

The holding, if sustained, makes criminal penalties easier to access, but that's fairly unimportant. The teeth of the holding are in the new availability of statutory and enhanced damages, which is a "commercial contract" issue, not a criminal matter.
posted by spiderwire at 4:59 PM on August 17, 2008

spiderwire, thanks for the post. Yeah I probably got parts of this wrong (IA so NAL) , but not the main points, I think.

a license is only a means of conveying an ownership interest copyright, not a copyright in itself. A copyright isn't a thing," it's a bundle of legal rights. This is akin to saying that the title in a piece of land is a house.

Duly noted, but isn't it a key point that the Appeals ruling confirms that an open-source type license is as enforceable in terms of the copyrights it dictates as any other license?

Even if "not just a contract" is interpreted pretty charitably, you have it backwards -- the license is an agreement to not enforce the copyright, not a transfer. And if it were a transfer, the holding wouldn't work, because the transfer would have to be reversed.

...come again? In no way is a GPL an agreement to not enforce copyright, no more so than any other legal license that specifies the permitted uses of a software title. Like them, it establishes specific conditions under which the user may or may not use, modify and convey the software. Just because a creator's aim in using the GPL happens to be to keep the software and its derivatives free for all users, does not mean he/she is any less entitled to justice if the license is violated.

Copyright violations are civil, not criminal, at least on face. Your statement is inaccurate at best, and probably just flat wrong. The criminal penalties in the federal statute are discretionary and have to be litigated, and they never are -- certainly not against corporations engaging in a monetary transaction.

Sorry, you're probably right: I don't know for certain that any copyright violation is automatically a criminal matter in all jurisdictions. But by confirming the principle that an open-source license is a legal and enforceable definition of the creator's copyrights, successful prosecution should now only require evidence of license violation, as opposed to the messier proposition of having to prove deliberate contract breach and to demonstrate harm.

Corrections most welcome.
posted by Artful Codger at 8:08 PM on August 17, 2008

Remember: Nothing means nothing until the Supreme Court either affirms or refuses cert. Should either of those hold, this is a powerful precedent. But nothing is precedent until the appeals are exhausted.

IOW, don't celebrate yet.

Not true. This is precedent, plain and simple. It is binding. The Court very rarely grants cert, and the denial of cert has no bearing on the precedential force of the ruling.
posted by Slap Factory at 9:11 PM on August 17, 2008

spiderwire, thanks for the post.

Huh? This is the Internet -- stop being so civil. You're making me feel bad.

Yeah I probably got parts of this wrong (IA so NAL) , but not the main points, I think.

Well, IAalmostAL, so it's likewise possible that I tend to sweat the details too much, granted -- that said, because this is a peculiar contract law issue, I think that the details are critical here.

IP and contract law in general, and copyright and license law specifically, all revolve around questions of what rights are being transferred and how, and since the rights themselves are intangible (i.e. the rights themselves are defined by the terms of the contract, statute, or the law), you have to be very specific about the fine points. How you define the thing determines what the thing is in a direct sense.

Licensing law is one of my specific areas of interest and I enjoy the topic, but one of its defining characteristics is that it's a bit arcane; I like that part, of course, but it can make it difficult to explain to laypersons -- so thank you for the patience, and please keep in mind that the explanations here are rarely straightforward.

Duly noted, but isn't it a key point that the Appeals ruling confirms that an open-source type license is as enforceable in terms of the copyrights it dictates as any other license?

I don't think so. Actually, I think the point is that it outlines a theory for enforceability that's different from almost any other license. As I said, one central problem with open source licenses is that there's usually no privity of contract between the licensor and the licensee, so it's hard to get damages -- usually you need intentional infringement of an agreement between the parties to get to the serious damages in a copyright case between two corporate entities, and certainly to get an injunction, which is really the important thing.

Another point is, I think, that contractual transfers generally have to be simultaneous: you define the terms of the agreement and then complete the transfer. There are some limited exceptions to this rule, but they really don't apply here. You're not really supposed to be able to get injunctions to enforce a unilateral contract like this, and courts frown on this sort of thing in general.

Furthermore, it's also tough to get enforcement where the link between the "licensor" and the "licensee" is as attenuated as it is in the case -- generally the cause of action would be against the first party in the chain that violated a warranty, then they would have a cause against the next and so on. For example, if a car explodes, the cause of action is generally against the manufacturer, not the dealer -- but also not against the party that manufactured the faulty engine that exploded. In the case of an open source license it's really not clear which party is "at fault."

...come again? In no way is a GPL an agreement to not enforce copyright, no more so than any other legal license that specifies the permitted uses of a software title.

I'd have to check the various versions of the GPL, but the second part of that sentence is not correct. In fact, most licenses are agreements not to enforce in some sense, because most licenses don't actually transfer any sort of ownership -- just a right to use. Go look at the EULA on any piece of commercial software and it will say something to that effect. So really, most software licenses are in fact covenants not to sue as long as the licensee abides by the terms of the license.

Open source software is kind of a hybrid breed here, and again, one of the central difficulties is in figuring out exactly what's being transferred. You can't transfer a copyright completely to another party any more than you could sell your house to two people. Furthermore, if you transfer away the rights completely you've no longer got any right to enforcement against infringers. (Otherwise, you'd have to get the court to reverse the transfer agreement first, which wouldn't be possible in the case of open source licenses because there's no explicit agreement.) So, to have enforcement of an open source license, the right has to be reserved partially to the creator. Therefore, any license agreement has to involve a covenant not to sue in some sense.

This is, in fact, actually what a "license" means in a strict sense -- its gives license to do something without effecting a transfer of ownership. So you can license somebody to come onto your property without giving them an interest in your house. For example, every time you invite someone to visit, you are granting a license -- but not giving them part of your house.

Like them, it establishes specific conditions under which the user may or may not use, modify and convey the software. Just because a creator's aim in using the GPL happens to be to keep the software and its derivatives free for all users, does not mean he/she is any less entitled to justice if the license is violated.

Unfortunately, those are specific statements about the intent of the GPL, not arguments for judicial enforceability. The GPL talks a pretty big game but it's really not clear how tight it is legally. Statements by the people who wrote and advocate for the GPL are often just propaganda; they don't have a lot of bearing on judicial reality.

The question isn't whether the GPL or any other license establishes specific conditions, it's whether those conditions can be enforced, in part or in toto. The ethical argument is distinct, though if you want to discuss that, I can think of some reasons why I disagree with it.

Sorry, you're probably right: I don't know for certain that any copyright violation is automatically a criminal matter in all jurisdictions.

In the U.S. copyright is under federal jurisdiction and defined by Title 17 of the US Code; the penalties section can be found here.

But by confirming the principle that an open-source license is a legal and enforceable definition of the creator's copyrights, successful prosecution should now only require evidence of license violation, as opposed to the messier proposition of having to prove deliberate contract breach and to demonstrate harm.

First, those two propositions are essentially the same thing -- i.e. proving a license violation requires you to demonstrate breach and harm. That's pretty basic contract law.

Second, if you check the link above, you can probably see that the presumptions don't exactly work that straightforwardly; there are immediate issues of who the copyright "owner" is, what's necessary to "prevent or restrain" violations, etc.

Third, in any event, I think it very unlikely that evidence of license violation with nothing else would be sufficient to sustain a case -- for example, there's an obvious issue of proving ownership of the copyright in the first place, among other things. So there has to be at least a little bit more -- probably a lot more.

It's a positive step but it's no more than that -- just a step.
posted by spiderwire at 9:32 PM on August 17, 2008

Not true. This is precedent, plain and simple. It is binding. The Court very rarely grants cert, and the denial of cert has no bearing on the precedential force of the ruling.

Um, no. Denial of cert isn't the issue -- the issue that until the Court grants or denies cert, (a) the appeals haven't been exhausted, (b) the ruling exists in legal limbo because no one knows whether or not it'll be overturned, and (c) any other case that's overturned on the same basis would be overturned by an unfavorable SC ruling, too. So what, exactly, do you think is "binding" here?

(Also, binding on who? Right now, just the Federal Circuit -- if the Court granted cert and ruled it would be binding on all Circuits. That does have an effect.)
posted by spiderwire at 9:51 PM on August 17, 2008

Oh, and as long as we're nominally on the topic, screw the GPLv3. It's unbelievable to me that so many people could complain at the top of their lungs for so many years about Microsoft's license enforcement policies, and then turn around and write a license agreement that purports to create a "viral," inclusive restriction via unilateral agreement (among other ridiculous things).

I mean, seriously, were they paying any attention at all to why consumers don't like big closed-source software companies? Was compliance with open source just not a sufficiently huge pain in the ass or something? Maybe the software industry in general just doesn't think anything is worth doing unless you can harass some less technologically-literate person about it down the line.
posted by spiderwire at 10:08 PM on August 17, 2008

My view is essentially the same as Malor's above, only he was able to say it so much better.
posted by Artful Codger at 6:38 AM on August 18, 2008

Spider, I think you might possibly be missing this basic truth: if I produce a copyrighted work, you don't have any right to copy it, unless I explicitly grant that right. Under our copyright regime, reproduction in essentially any form is verboten: our default position is to grant no rights at all. (with a few very limited exceptions.)

I assume you're speaking for everyone else's benefit since, yeah, I'm fairly familiar with how copyright works. Please don't deign to lecture me about what you think is a "basic truth" about an extraordinarily complex topic where you appear to have no expertise. Thanks.

The central problem with your argument is that the "default" rules probably don't apply to open source works, which have by definition been released to the public and made available to copy. The court in the decision we're dicussing references Sun Microsystems in support of this position -- granting a license limited by a covenant (which is what you're talking about) actually means that there's no action for copyright infringement. IOW, a license that's limited by whether or not you complied with the contract terms is only enforceable by an action for breach; only a license that limits the scope of the granted right can potentially create an infringement action.

I realize that's a tricky distinction, but you're actually talking about the former and not the latter -- and frankly, it's for that reason that I think that the Court's decision here is a little sketchy. They get around the problem by calling the limiting terms covenant and conditions, but that's a cop-out. There's no practical distinction between the two under that analysis; all covenants are limitations of scope in some sense.

This is not a question of copyright law as you seem to believe; it's a question of contract law and -- maybe -- how it interacts with copyright law.

There's not much room for dispute about the contract itself. If they dispute the GPL, fine, it's not a contract. The copyright holder shrugs and sues for damages. If they accept the GPL, but don't fulfill its terms, it's still not a contract, and they still don't get the ability to infringe copyright.

This is wrong in so many ways that I'm almost not sure where to begin. You don't have to stipulate that the GPL (or any OS license) is not a contract in order to contest it -- in fact, that's kind of the point. In this case, for example, the defendant was arguing that the license was a contract and that any violation should be governed by contract law. The choice is not "accept" or "dispute."

Because of the default-deny condition of copyright law, if I sue you for copyright infringement, once I demonstrate that you have indeed infringed my copyright, you have to prove that you were allowed to do that.

If you sue someone for copyright infringement, you first have to demonstrate that you have an enforceable copyright. If the purported infringement occurred pursuant to a nonexclusive grant of rights, you don't.

As the defendant, you have to use the GPL as your defense, but to do that, you have to uphold it in its entirety. This is the key issue: the DEFENDANT has to prove that the GPL is a valid contract. The plaintiff merely has to prove copyright infringement, and it's up to the defendant to demonstrate that the GPL made the infringement legal. In normal contract law cases, the plaintiff has to prove the terms of the contract, but in this case, the DEFENDANT does. It's a critical difference.

No, no, no, no, no, a thousand times no. Wow, I wish that I had read this bit more closely before I typed everything above. I have no idea what "normal contract law cases" you think you're talking about, but (a) no contract is an all-or-nothing proposition, and (b) the GPL is a unilateral contract, so it doesn't have to be negotiated between the parties to create a waiver of rights.

I think I'm done with this. I said this was an arcane issue, but apparently everyone just wants to argue about whether or not open source is a good thing, not about the actual questions at hand. Don't make authoritative pronouncements about topics where you have no actual expertise; ask questions and try to learn a thing or two.
posted by spiderwire at 12:05 PM on August 18, 2008

spiderwire, I'm still asking questions and trying to learn a thing or two.

You state: The central problem with [malor's] argument is that the "default" rules probably don't apply to open source works, which have by definition been released to the public and made available to copy.

On what do you base that? "By definition", open source works are designated as such because the authors aim is to keep the source code and that of any derivatives freely available. Saying that OS- licensed works have by definition "been released to the public and made available to copy." is inaccurate and incomplete, therefore incorrect.

The terms of the OS licence state that users are explicitly permitted to use the work, and users are explicitly permitted to convey the work according to to an again-explicit set of requirements. This is the same construction as any legal software license, no?

To say that the OS license doesn't get the same consideration as any other well-formed software license is implying that the OS- licensed software is somehow different or inferior. Do we really have to fight this one here? The only difference is what the author chooses to do with his/her copyright.

To ask my question more directly: why don't "default" rules apply to open source works? This is both a philosophical and legal sticking point, it seems.

("Can't have them dirty commie hippies infesting our economic infrastructure with FREE software, nosirree!")
posted by Artful Codger at 1:05 PM on August 18, 2008

Related - one of the messiest OS/Linux related battles - SCO vs the world, it seemed - is about done.
posted by Artful Codger at 1:48 PM on August 18, 2008

spiderwire, I'm still asking questions and trying to learn a thing or two.

You could even be a little more critical if you liked. :)

I'm not trying to imply that I think I'm above the discussion -- just that I'm not really here to learn about contract or copyright law, since that's what I already do in my day job, as it were. It wouldn't be a very efficient for me and it wouldn't be enjoyable for most people because it'd probably be incomprehensible.

On what do you base that? "By definition", open source works are designated as such because the authors aim is to keep the source code and that of any derivatives freely available. Saying that OS- licensed works have by definition "been released to the public and made available to copy." is inaccurate and incomplete, therefore incorrect.

Hmm. Not sure how to explain this. Basically, Malor's argument was that when a copyright is created, it's not free to the public. The issue is that though that's the original state for a copyrighted work, once a work's been released to anybody there's an operative question of whether the license is exclusive, non-exclusive, etc., so calling something the "default state" is an ideological argument -- not a legal argument -- about the disposition of the work.

So, to be a little more precise, an open source work is by definition available because you have to be able to access and modify it; that's the point of a license, which has to exist in order to use the work legally in the first place. So the actual question is whether the constraints attached to the license are enforceable.

The terms of the OS licence state that users are explicitly permitted to use the work, and users are explicitly permitted to convey the work according to to an again-explicit set of requirements. This is the same construction as any legal software license, no?

No, non-exclusive licenses actually aren't transferable, because they're definitionally nothing more than a contractual agreement not to sue. The copyright has to be assigned via an exclusive license to be transferable. I was just looking at a quote but I forgot it at home -- from Classen's "A Practical Guide to Software Licensing for Licensees and Licensors", referencing a Raymond Nimmer treatise -- and I'll get it to you if I remember to write it down.

So not "any" software licenses; in fact, not most software that's not explicitly written on contract and assigned in toto (and then it would probably just be a work-for-hire anyway).

To say that the OS license doesn't get the same consideration as any other well-formed software license is implying that the OS- licensed software is somehow different or inferior. Do we really have to fight this one here? The only difference is what the author chooses to do with his/her copyright.

Well, again, this is no different from an "ordinary" software license, to the extent that's even a coherent idea. A "well-formed" software license could be either exclusive or non-exclusive, etc.

I think that what you're picking up on here is that open source software is not distributed as closed source software is, and the licensing rules that apply to one are not necessarily appropriate for the other (which may be kind of the point -- the closed source distributing model kind of sucks). You ask, "why don't 'default' rules apply to open source works? This is both a philosophical and legal sticking point, it seems." I think there are two answers here.

(1) First answer is that distribution has to be mediated no matter what. E.g., if you just gave away closed source software with a license that said "if you beat World 1-4 in under 2 minutes you lose copyright protection in this game" and tried to sue someone, courts probably wouldn't enforce the rule, and for good reason. So we have to have a coherent distinction between that situation and one where the licensor says you have to include documentation if you copy it, etc. -- and note that this hypothetical doesn't turn on whether the source is available.

(2) Second answer is that to the extent that the rules are different, that's not necessarily bad. Closed source has its place (e.g., interpreted code designed on an exclusive contract and not for distribution presents a good case for protection). And my personal opinion is that people should be able to choose what distribution model is best foro their own software: closed source, open source, or otherwise. So the rules have to be reconciled or distinguished without favoring one distribution model. That's a tough task, legally and ethically, I think.
posted by spiderwire at 2:36 PM on August 18, 2008

Related - one of the messiest OS/Linux related battles - SCO vs the world, it seemed - is about done.

That's been a foregone conclusion for a while, but it's certainly welcome news. Took long enough.

(Could do without the article kissing Groklaw's ass though.)
posted by spiderwire at 2:39 PM on August 18, 2008

Last try, I swear.

ASSUMING that courts & the market agree that the terms of an open-source license are reasonable and not frivolous (like your e.g. in #1 above), then do you agree that violations of an OS license are as serious and as actionable as any other (well-formed/legal/whatever) license?

I don't think the distribution model should be considered when a copyright violation has been committed; I don't think that OS creators are less deserving of their copyrights. Otherwise any open-source project will be fair game for plunder by any corporation with a big-enough war-chest.

***************

Yeah there was alot of Groklaw love in that linked article... but it's undeniable that Groklaw helped keep the battle in the spotlight. As the article notes, most of the MSM was using groklaw as their source and library. Without groklaw, would the MSM even have bothered doing much besides scanning press-releases?
posted by Artful Codger at 3:16 PM on August 18, 2008

Last try, I swear.

Sorry, trying to explain as best I can. You're asking fine questions and I'm putting off other work :) so I really don't mind as long as someone is getting something out of it.

ASSUMING that courts & the market agree that the terms of an open-source license are reasonable and not frivolous (like your e.g. in #1 above), then do you agree that violations of an OS license are as serious and as actionable as any other (well-formed/legal/whatever) license?

As serious, yes. As actionable, not necessarily. The "should" is not the "how." The license that works for one model doesn't necessarily work as well for another, nor should it.

For example, a development company might want to do a project that cedes all rights to the client (exclusive license, transfers copyright), or retain the rights and cut the client a deal on the price because the developer wants to get in the market and sell it to others later (nonexclusive license, doesn't transfer copyright, just agrees not to sue client as long as they don't do certain things like sell to competitors).*

So both of those examples are for a closed source project, and they're both nonfrivolous. But neither license agreement would be less "well-formed" or "legal" than the other. So the question isn't should the license be written in a certain way, because ultimately there's no perfect license. It's how to best write the license to circumscribe the rights of the parties in an agreeable way.

Remember, in the nonexclusive-license example, the closed-source developer doesn't want the license to be freely-revocable, because no one would buy the software. Same deal with open source. It's in the interest of most open source projects to be competitive with closed-source enterprise projects, because no one will invest in their software if their right to it can be revoked at any time**, even if the software's superior.

I don't think the distribution model should be considered when a copyright violation has been committed; I don't think that OS creators are less deserving of their copyrights.

First of all, part of the problem here is that both sides are trying to use copyright as the big guns backing up their particular theory.

Second, "copyright" isn't a synonym for intellectual ownership, which is what you seem to be talking about when you say "deserving." Copyright is a specific legal artifact that protects a specific sort of intellectual property right, and it's defined in terms of judicial enforceability. "Deserve" is an ethical term; copyright is a technical question. The precise way to phrase this is probably "all creators deserve protection" -- a defensible statement, but again the question is how.

Third, there's a balancing question here. Everyone "deserves" to have a place to live, but that doesn't mean that anyone can walk into your house whenever they like. Again, personal interests have to be balanced against societal interests to some extent -- we can say that distribution models should be agnostic, but eventually we have to make some choices about what restrictions authors can fairly put on the use of their works. It's easy to see that my example above about beating a level in a game would be frivolous way for an author to restrict their copyright; the difficult thing is to say why it's frivolous and apply that standard universally.

* This is actually a pretty good example, if I do say so myself. Much more clear than anything else I've said so far.

** Well, technically this happens all the time, I guess. But no one reads the EULAs for closed-source enterprise software, which always say that the license is revocable if you do blah blah blah -- but they're never enforced anyway, and they're becoming harder to defend. But that's a separate topic.
posted by spiderwire at 3:57 PM on August 18, 2008

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