back to article Model train software spat threatens future of open source

A dispute over some open source software used for model railroads resulted in an important decision last week, involving the scope of open source licenses and the remedies available when they are violated. The decision has triggered alarm in the open source community, with a prominent open source licensing advocate charging …

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This would go beyond open source licensing

It strikes me that so many people make the mistake of assuming that open source licenses are a completely separate category to any other copyright license; they aren't. In terms of basic substance, or stuffness, they are simply a vastly more permissive version of that EULA that microsoft foists on you whenever you scrape the shrink-wrap on one of their boxes. In terms of intent they're very different, of course, but that doesn't change anything; they're still a copyright license.

This means that other, less permissive licenses are also affected by this ruling. Every copyright license relies on the fact that a copyright holder can do whatever he wants with his product, and license it however he likes, with a fallback to written copyright law in the case of licensing breaches. Without that piece of law the license is worthless. With the law, a breach of the license is also a breach of the law.

What this means is, if the judge rules the way it seems he might, then *all* copyright licenses could be considered contracts. All copyright licenses would change status, not just open source licenses, but all and contract law brings a long a whole set of provisions that most copyright licenses are just not designed to consider. The explicit lack of implied warranty in all software licenses are run-of-the-mill in licensing terms, but would be an onerous provision in a contract, a provision worth suing, especially as the "contract" has been foisted on the end-user by a change in legal status without any actual acceptance of the terms of that newly-minted "contract".

I wonder if the judge has actually thought about this...

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So copyright is out the windows?

Doesn't this extend beyond open source?

If I buy a copy of Vista, pull some code from it, and then re-use it in my own software, its not breach of copyright, but breach of contract?

But what really worries me is the amount of bad train related puns we'll get.

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Re: So copyright is out the windows?

Errr well you could do that but then microsoft would say they were $100,000,000,000,000 out of pocket and sue your ass. Unlike the open source community who would be $0.00 out of pocket. Are we surprised in any way that the US justice system is unable or unwilling to defend free software?

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Pun

It's all gone off the rails! (Sorry)

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Reputation is worth money too

As the US courts don't seem to care about much other than financial damages, you could argue that by not including the correct headers and attribution, the copier reduced the reputation, PR and good will value of all the people contributing to the original software. You could value that and award damages accordingly.

Say 100 people contributed to the software and lost $1,000 a year in reduced future earnings by not being correctly associated with it. Loss of earning for the rest of their working lives (say 30 years on average) gives $3m in damages. Add in some legal fees and a bit of compound interest or adjust for inflation and you get a number plenty big enough to discourage most people from breaking the license terms.

You would also encourage larger open source projects (if I get involved and contribute some code I might get a cut when someone breaks the license).

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Anonymous Coward

It is clear

which direction our system is going. In near future, gov will declare open source illegal, and all who dare to go there will be put on death.

The same judge will land you life time in jail if you dare to pull some code out of M$, and reuse it.

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Re: Beyond open source

Graham Dawson and Arclight fail to take into account this sentence when claiming the case has repercussions beyond open source:

"The court held that Jacobsen had implicitly promised not to sue for copyright infringement by distributing the source code under a nonexclusive license."

Whether this position by the court is reasonable is another matter entirely ...

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Anonymous Coward

"John Marlan Poindexter is a retired American naval officer and Department of Defense official."

Is there a nerdier thing than "open source model train software"? Perhaps if the model trains have functioning astronomy telescopes attached to them, or little flatcars that house moulds, spores, funguses, and other thallophytes, then they would be nerdier.

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Statute vs. Contract law

I wonder if this is one of those cases where the interpretation of copyright, which is, I believe (and I am not a lawyer), a statute law, being misinterpreted by the court in order to find a "home" for this type of suit.

My reasoning (and I hope a qualified lawyer corrects me here) is that copyright is defined in the statute laws of countries, territories, etc. as part of the definition of what "belongs" to that legal jurisdiction. I believe that this is the same type of reasoning that is applied to other "licenses" that are granted under statute rather than contract. Case in point: a "driver's license" is granted by a territory to an individual, giving that individual the permission to operate a motor vehicle in the territory.

The "driver's license", like a license granted in copyright, provides specific permissions and restrictions on actions an individual can perform in and with a motor vehicle, although this is codified elsewhere (i.e., in the Motor Vehicle Codes (MVC) of most territories). Thus, as a licensed driver, I can be held in violation of my license if I do any action that is forbidden, not by only by the license itself, but by the MVC of the territory.

To put this in perspective: if I am driving a car at a speed above the posted limit on a road, I am in violation of the MVC, and, by implication, in breach of my driving license. It does not matter if there is no injury to any party in this action (i.e., I am driving down an empty stretch of U.S. highway between Kingman, AZ and Havasu City, AZ at 3am with absolutely no traffic and a full moon): if I am exceeding the posted speed limit and I am observed by law enforcement, I will be stopped and potentially detained - and my license revoked - for this violation. In as much as I have not caused any damage by my driving violation, am I not in the same position as the Jacobsen case? I broke the law, and my license is in jeopardy. (This should be even more familiar to folks in the U.K., as the traffic cameras are doing this by enforcing speed violations, regardless of the circumstances surrounding them, eh?)

This particular case of copyright may be viewing the license from a standpoint of what was conveyed by the license, ignoring the implication of the contract that is inherent in a copyright.

If you open a book, on the copyrights page there are usually a number of citations that declare the copyright, and these are usually followed by the words "all rights reserved". In my understanding, this means that I am prohibited from doing anything that is defined in the copyright as being conveyable by the owner. In the case of, say, a work of fiction, the licenses that may be conveyed are many and very narrow in their grant: I can license one publisher to print the story in a hard-back book, grant another license for the same work to be printed in paper-back, another in "trade" format, another for "graphic novel", another for "serialzed comic", etc., etc. Each of these licenses is a contract, both in fact (I would typically sign a contract with a publisher for remuneration based on granting them a license) and in implication (I am serving notice in the copyright notice that all rights are still subject to my grant of license, and if you publish the work without a contract you are in violation of copyright - even if a license for this particular type of publication has never been granted).

Now, in the Jacobsen case above, I believe that the rights are conveyed as a condition of accepting the license. If you don't want to meet the license, you don't get any rights conveyed and you don't use the code. This is no different than Tom Clancy "shopping" a new novel around to movie studios: if they don't want to meet the conditions of the license ("pay Mr. Clancy a lot of money") they don't get to make the film. If a movie studio went ahead and made a movie based on Mr. Clancy's work without obtaining a license, would they not be in the exact same position as the defendants in this case? The only real difference is that the remedy is money in one case and (essentially) apology in the other.

But the underlying law that is being enforced in BOTH cases is copyright, a STATUTE, not a CONTRACT. And just as not having a driver's license prohibits ANYONE from legally operating a vehicle, doesn't the failure of the defendant to obtain a license (i.e., include the license terms and copyright notice) fall into the same category?

My point here is that, if copyright is a statute law, then violation of it is just like any other statute law. If there is a "contract" involved at all, isn't this the implied contract that surrounds ALL statute law - that failure to abide by the statute is a CRIMINAL action?

Oh, and regardless of the economic merits of this case, isn't this a CRIMINAL violation ANYWAY? At least that's what all those copyright notices embedded in movies tell me.

So, where is the FBI when we REALLY need them?

*****

Re-reading my post, it has suddenly struck me that the solution might be something as simple as including the wording:

"(C) Copyright {date here} {your name here}

All rights reserved, except those specifically granted under the terms of the (insert GPL license here)."

Really, is this all it would take to close the loop on the GPL? The simple statement that you grant nothing unless the license is accepted? Please someone post a response!

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Fear not The GPL is not being railroaded here.

This is a minor license called the Artistic license, and this is just preliminary stuff for this case only.

The powerful GPL (General Public license) that Linux is mostly wrapped around is not even related or relevant here... Other than to say that maybe those who chose to use the "Artistic license" should have thought about what license to have used in the first place :)

Anyone from the OSI noticing the importance of what gets approved.

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Statute vs. Contract law

In most cases, the grant of rights under a license obtained from the copyright owner is a waiver of the right to sue for infringement.

Remember, it isn't necessary for a copyright owner to use a software license (at all) or to permit anyone else to exercise one of the 'exclusive rights' to copy and distribute the software, make derivative works, and etc.

Having some sort of attribution inserted into derivative works isn't one of the exclusive rights enumerated in USC Title 17, section 106:

http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000106----000-.html

The only exception is a case where the scope of the exclusive right(s) granted in the license are limited (e.g. GPL prohibitions against additional license restrictions or binary linking), and the licensee actually exceeds the scope of the license. That situation could result in both copyright and state-law claims for relief. This particular license had no such limitation on the 'so-called' exclusive rights.

A license can contain many additional terms and conditions that don't pertain to the 'exclusive rights'. Those are not preempted by the federal statute. Claims involving those terms and conditions are decided according to the applicable law of contracts.

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Change of mood

Perhaps the issue is that most authors of free stuff traditionally haven't cared that much how people use their content, even though the licences contain restrictions.

The licence I've put on my latest free video

http://pro.forscene.net/ss1/ogg/BBCDemon-1187966696.can/index.html

means I retain copyright. I would have thought that in English law, if you break my copyright, I can enforce deletion of the material, and that I can get an injunction to prevent a particular person (or company) from copying the material. Copyright means I have the right to control the copying of the material.

Contract law is not so helpful to me because you may not have enough resources to pay sufficient damages.

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This post has been deleted by its author

This is crazy.

Long words and meaningless abstracts that fail to be adapted to real world matters. If I create a piece of software, and am crazy enough to put a GPL sticker on it wanting only credit in the readme files; and some jerk just steals it and builds himself a golden house and a rocket car, then screw him - he should get an express ticket to the state correctional facilities. Which, by the way, is to say - only in America, ey?

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Haha

More open source license crap. I want it for free but after I get it I'm going to use it to make my own money with. Haha, most countries used to practice something like this, it was called slavery, and now it's illegal (in most places). The people who code open source projects are nothing but slaves to the businesses that actually make money. Go ahead and code yourselves into slavery but don't come whining when someone who understands business comes and takes your toy away.

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Scope

Doesn't anyone understand the scope of rights test?

“In light of their facts, those cases thus stand for the entirely unremarkable principle that “uses” that violate a license agreement constitute copyright infringement only when those uses would infringe in the absence of any license agreement at all.” 2005 U.S. App. LEXIS 18131 (Fed. Cir. 2005).

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Copyright?

I've just read the artistic licence. While it does talk about the Copyright Holder, it doesn't actually seem to include a claim of copyright.

I think something like this is probably needed;

"This software is copyright <author>. Copying and distribution is only allowed under the terms of the <blah>. license. A copy of the licence should be included with the software, but if not, it can be obtained by <instructions>"

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Damages?

I would be arguing that the damages in any piracy/license violation are the RRP (greater of the 2, real vendors or pirate) times the number of copies sold by the pirate.

I would say that if a free product is flogged off by someone for $20 a copy, then clearly that's the value of the product. Just because the buyer could have got it free if they weren't stupid doesn't make the value any lower.

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@Others

@Raheim Sherbedgia

One distinction. No one is forcing open source programmers to write code.

@Arclight

"If I buy a copy of Vista, pull some code from it, and then re-use it in my own software, its not breach of copyright, but breach of contract?"

No, because Microsoft does not grant you the right to copy. The license in question says "you can do A, but if you do, you must also do B" MS says "you can not do A".

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Anonymous Coward

Question about contracts...

My understanding is that a contract is a mutual agreement between two parties. In other words, you cannot be in a contract with someone you've never heard of.

Even the traditional shrink-wrap licenses are dubious on this 'mutual agreement' point. Depending on how you purchase your software, they are prone to being 'conditions subsequent' to the agreement. The only thing that could be considered a contract occurs at the point of purchase, at which point the purchaser has probably had no opportunity to view any shrink-wrap license. 'Conditions subsequent' are legally unenforceable - as I said, the complete agreement was at the point of purchase, and any attempts to impose further conditions after that agreement is completed are legally irrelevant (in theory, of course).

What makes shrink-wrap licenses even more dubious, apart from the 'conditions subsequent' thing, is that there has never been an agreement between the two parties. The software developer has no knowledge of the buyer, because of all the middle-men (distribution, retailers etc). Any contract that the user has is with the retailer, not the software developer.

So what happens with an open source license is that a party releases software with an agreement that defines conditions on its use. The user knows who developed the software and the details of the license agreement - but the developer has no knowledge of this user. How can there be a contract between the two?

I can only assume that even that tiny little bit of law that I thought I knew is wrong.

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Anonymous Coward

What do you expect?

Concerning Graham Dawson's : "I wonder if the judge has actually thought about this...":

Of course not. This is California where judges are paid NOT to think. Look at the stream of stupidity coming out of the 9th Circuit Court of Appeals.

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Anonymous Coward

So if its published and allowed to be distributed its a runaway train?

I wonder what would happen if the open source author & community copied the text of the judgement all over the net? It's a matter of public record and therefore is implicitly available to all, the courts don't profit from it so suing for damages is difficult.

I'm not surprised some conspiracy theorists believe big business is behind this.

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