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OK. But What Does It Mean? (Jacobsen v. Katzer)
Thursday, August 14 2008 @ 02:30 PM EDT

I've been getting a lot of requests to tell you what the appeals court ruling in Jacobsen v. Katzer means. Some would like me to simplify and just tell you the bottom line, so here it is, my take on what it all means:
It means that while OSI's handling of a list of approved licenses worked very well for a community made up of FOSS programmers, who are decent folks all on the same page overall, now that enemies of FOSS are attacking, we need a new organization to vet licenses going forward a lot more carefully, one made up of experienced FOSS lawyers, none of them with a history of hostility to, or ignorance of, the GPL, with the community as advisors.

Well, you asked me "what it means", and that is my opinion. Licenses now matter in a way that they didn't in the good old days, and it's time for programmers to realize that writing a license, and choosing one, is best left for lawyers, because what you write and what you choose can impact the entire community in ways you don't even understand, in ways that can undermine and even destroy it.

I'll write an article explaining why that is my opinion in due time, but it's so complex, this case, that it will take some time. But that is the bottom line as I see it. This case was very nearly a serious disaster for FOSS, in part because the Artistic license was vulnerable to attack, and the FOSS lawyers had to do a lot of work to get this to come out the right way. Going forward, we need to make sure we avoid obvious pitfalls in license language, and licenses that don't meet a set bar should not be approved.


  


OK. But What Does It Mean? (Jacobsen v. Katzer) | 169 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: Anonymous on Thursday, August 14 2008 @ 02:35 PM EDT
"It means that while OSI's handling of a list of approved licenses worked
very well for a community made up of FOSS programmers, who are decent folks all
on the same page overall, we need a new organization to vet licenses going
forward a lot more carefully, now that enemies of FOSS are attacking, one made
up of experienced FOSS lawyers, none of them with a history of hostility to, or
ignorance of, the GPL, with the community as advisors."

I think your clarification might need a clarification. *grin*

I had to read that twice, because the first time I read it, I thought that a
group of experienced FOSS lawyers had become enemies of FOSS. But that didn't
sound right, so I re-read it and figured out what you meant. I would re-write it
as:

"It means that while OSI's handling of a list of approved licenses worked
very well for a community made up of FOSS programmers, who are decent folks all
on the same page overall, we need a new organization to vet licenses going
forward a lot more carefully, one made up of experienced FOSS lawyers, none of
them with a history of hostility to, or ignorance of, the GPL, with the
community as advisors, now that enemies of FOSS are attacking."

[ Reply to This | # ]

Many Lawyers Make All Licences Bulletproof.
Authored by: billyskank on Thursday, August 14 2008 @ 02:37 PM EDT
Something like that, eh? ;)

---
It's not the software that's free; it's you.

[ Reply to This | # ]

Corrections
Authored by: bbaston on Thursday, August 14 2008 @ 02:51 PM EDT
Please show in

Ttl > title

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

Off topic
Authored by: bbaston on Thursday, August 14 2008 @ 02:52 PM EDT
links appreciated

---
IMBW, IANAL2, IMHO, IAVO
imaybewrong, iamnotalawyertoo, inmyhumbleopinion, iamveryold

[ Reply to This | # ]

News Picks Thread
Authored by: bugstomper on Thursday, August 14 2008 @ 02:53 PM EDT
Put title of News Picks article in title. Use HTML tags and HTML mode to make
clickies

[ Reply to This | # ]

OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: webster on Thursday, August 14 2008 @ 03:17 PM EDT
..
To PJ and the open sourcerors it means pick licenses that do what you want AND
are tried and true.

To the Circuit it means follow the conditions of the copyright license even if
you don't have to pay for it.

To Katzer it means they can't ignore the conditions of the license by saying it
was free.

To copyright holders it means control of their creations and creations built on
their creations.

To copyright consumers it means heed the license whether paid or free.

To Katzer and code smugglers [or "Pirates" if you will ;)] it means
there may be consequences. One ought to clean house before you send out
$200,000 patent bills. Can Katzer stay in business without this code?

[ Reply to This | # ]

Markup
Authored by: Anonymous on Thursday, August 14 2008 @ 03:20 PM EDT
Aren't you using HTML "<blockquote>" markup to highlight or set
apart what you yourself mean to say - as opposed to quoting some text found
somewhere else?

[ Reply to This | # ]

  • Markup - Authored by: Anonymous on Thursday, August 14 2008 @ 03:46 PM EDT
  • Markup - Authored by: Anonymous on Thursday, August 14 2008 @ 05:37 PM EDT
    • Markup - Authored by: Anonymous on Thursday, August 14 2008 @ 05:56 PM EDT
OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: Anonymous on Thursday, August 14 2008 @ 03:24 PM EDT


Somehow the antics of the Katzerjammer Kids seem not all that far removed from
those of our SCOundrelly li'l rascals ...

[ Reply to This | # ]

What Does It Mean? That Depends....
Authored by: RFD on Thursday, August 14 2008 @ 03:32 PM EDT
on your situation.

When I first read this opinion (about 10 minutes after it was issued), I was
stunned. I knew it was a big deal, but it took a while try to grasp some of the
implication. IANAL, but here are some of my conclusions anyway.

If you are a lawyer, it will be much easier to win a case against someone who
violates the GPL, or other opensource license.

If you are an opensource developer, it will be easier to find a lawyer who will
handle your case. They might even take it on a contingent basis, since
copyright infringement can involve large statutory damages and attorney fees.
Software developers with limited means will find it easier to pursue their
claims.

If you are a commercial software company tempted to appropriate opensource
software but ignore license conditions, your risks have gone way up.

In short, this decision has moved the GPL and other opensource licenses closer
to the mainstream of copyright law.


---
Eschew obfuscation assiduously.

[ Reply to This | # ]

Lawyers choosing licenses, even for small projects?
Authored by: Anonymous on Thursday, August 14 2008 @ 04:04 PM EDT
I only wish my own pet projects were big enough to where a lawyer was needed.
Sadly, what I work on is (currently) highly obscure, and even more highly on a
shoestring budget.

I really hope I don't need to go get a lawyer now to tell me the license(s) I
picked to release my code under aren't the best choices.

[ Reply to This | # ]

JMRI is distributed under the GPL v2.0 Now
Authored by: dio gratia on Thursday, August 14 2008 @ 04:37 PM EDT
Going forward, we need to make sure we avoid obvious pitfalls in license language, and licenses that don't meet a set bar should not be approved.
JMRI is distributed under the GPL now, including all those decoder configuration files originally at issue. The dispute between the parties appears to have been bigger than just open source licenses. Apparently there's been cybersquatting as well as trade mark issues. JMRI has an archive of legal announcements (jmri-legal-announce Email Archive). I was trying to discover the date of the switch to the GPL with respect to court actions. The switch to the GPL appears to have occured in JMRI version 1.9.1, November 2007.

There's also a bit of interest on the JMRI Defense web page, wherein the patent holder has asked for patent licensing royalties of $19 and $29 per downloaded copy of JMRI. To put that in perspective, MPEGLA will license the latest and greatest video decoders as a package for around $0.75 a copy when licenses are purchased in bulk for the suite of patents covering the technology.

[ Reply to This | # ]

This may actually have some bad sides
Authored by: Anonymous on Thursday, August 14 2008 @ 05:01 PM EDT
Such as the Blizzard case. If violating the license is copyright infringement,
anyone misusing WoW is in deep trouble.

[ Reply to This | # ]

If lawyers had their way, there would not be a GPL.
Authored by: Anonymous on Thursday, August 14 2008 @ 05:28 PM EDT
Such comments point out the under-recognized strength of the GPL and, indirectly, the political genius of man who played the largest role in creating it. "There isn't a lawyer on earth who would have drafted the GPL the way it is," says Eben Moglen, Columbia University law professor and Free Software Foundation general counsel. "But it works. And it works because of Richard's philosophy of design."
Quotation taken from Free as in Freedom.

Lawyers have spent so much time studying contracts in law school, that they seem to have a bias toward contract licenses like EULAs rather than copyright licenses like the GPL.

When all you have is a hammer everything looks like a nail. But as this case itself points out, copyright licenses have some enforcement advantages for Free software and and for so-called Open Source.

So if you consult a lawyer, you need to be aware that you might be mindlessly pushed toward a contract license when a copyright license might serve you better.

You will need to grab your lawyer by the collar and force him to consider the advantages of copyright licenses. You need to force him to justify any contract license he might propose. Make sure he is not just flowing with the inertia of his training.

[ Reply to This | # ]

OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: Tolerance on Thursday, August 14 2008 @ 07:10 PM EDT
Something interesting, not mentioned so far, is the court's misconstruing of the
idea of a "licence".

A licence doesn't have to involve any kind of consideration, of commercial value
or otherwise, and it's wrong to imply - as the court does - that if there is no
commercial value to code then it's not protected by licence terms deriving from
copyright.

It doesn't matter in a way because the good guys won regardless, but why did the
court have to focus so much on the idea of a contract with consideration given
and received?

It's probably true that the majority, and possibly the vast majority, of open
source contributions are made by employees of corporations which pay for what
amounts to increased market recognition. And the court is wise to mention it.
But at least some code is released with no profit of any kind whatsoever except
the moral recognition of the right to be identified as the author.

In my property law classes we dealt with trespass on someone's land. One of the
defences to trespass was that of a licence, and the analogy with code is useful.
An easement or a right of way can be granted by licence. There could even be an
implied right of access (like walking up to a restaurant door needs an implied
licence to cross the restaurant land) which can be revoked with a trespass
notice.

Most importantly there could be a personal licence. ("Bob, as far as I'm
concerned you can walk through my back yard any time as a shortcut to your
place"). Such a personal licence can be revoked at any time and doesn't
pass with the land.

Or someone might gift a garden to a commons area - that doesn't mean someone
else can revoke the commons when they buy the place. At least not in
Westminster law (there was a case called Tulk v Mozhay). What the court has
done is analogous to saying first, that a subsequent owner can revoke a commons
if no consideration was given and received, and second, that Bob can keep
crossing your land even if you tell him not to.

The way the court's ruling here reads, US law is different not just to
European law - which does recognise moral rights - but also to British law. The
court says explicitly that if there's no commercial value a licence can't be
enforced. It justifies this on the grounds that the common law recognizes no
"moral right" of authorship, but that is not what a licence is about.


Someone might have a personal licence to use certain code. That doesn't mean
they can publish it, and certainly not claim it as their own, especially since
that code might be otherwise secret. The GPL and other open source licences
simply extend this idea. There need be no commercial consideration involved (The
code need not be secret either).

It seems to me the court is wrong to conflate this idea of licence rights
with no commercial value, and "moral rights of authorship". Someone,
somewhere, sometime needs to challenge this.

---
Grumpy old man

[ Reply to This | # ]

Mainstream media picks up Jacobsen story
Authored by: Aladdin Sane on Thursday, August 14 2008 @ 10:18 PM EDT

Open-source pact subject to copyrights law: court
Reuters
Martha Graybow
Thu Aug 14, 2008 12:39pm EDT

NEW YORK (Reuters) - A U.S. federal appeals court has ruled that the holder of a copyright to a computer programming code made available for free public download can enforce an "open-source" copyright license to control future use of the work.
Uh, oh. This means the PHB's might get the word. If FOSS licenses are good with the US CAFC, conservative business types can no longer argue against them with a straight face. Could put Groklaw out of business!

I can spot at least two glaring mistakes in the article, but it seems to me the author got the "gist" right.

---
"The choice to exact consideration in the form of compliance with the open source requirements..., is entitled to no less legal recognition." --US CAFC

[ Reply to This | # ]

Why GPL3 took so long?
Authored by: Observer on Thursday, August 14 2008 @ 11:10 PM EDT
With this decision, and the fact that the courts almost DIDN'T go in the right direction, the couple of years that the GPL3 took to finally get hammered out make a lot more sense now. The legal terrain is a lot more complicated now (or, perhaps more filled with mines and pitfalls) than it was years ago when RMS first thought up the GPL.

There are a lot of very bright people out there trying to poke holes in these licenses. Unfortunately, I think I agree that we need real lawyers to come up with licenses that are not only understandable by technical people, but by the courts that we dependent on to give the licenses teeth to make them do what we want them to do.

---
The Observer

[ Reply to This | # ]

OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: Anonymous on Friday, August 15 2008 @ 03:52 AM EDT
Well, from what I've read, it's more a case of a dumb (or extremely anal /
over-analysing) original court than a problem with the licenses. You can point
fingers at the "Artistic License" all you want as being somehow more
amateur, but the point is that some licenses are incredibly basic and whether or
not they are enforcable, copyright laws still hold on their subjects. This was
the crux of the argument, not how strong or clear the licenses were.

As part of my job, I have to manage software licenses for schools, including
adhering to their terms. We have some pieces of free/Free/Open software in
among that lot and some of the "licenses" are literally nothing more
than a quick note from the Author (because a full license wasn't included in the
original software and I had to get in contact so that I've at least got
something on paper saying we can use it). Some actual examples of
"licenses" I have evidence of are:

- an email from Google Earth's licensing manager saying "Yeah, Google Earth
is allowed to be used and distributed for free in schools so long as you don't
sell it or use it for commercial stuff" (in that tone of language, and
without any formal license agreement where Google Earth's included license
agreement actually doesn't mention this).

- "This software is free and unlimited. You may not alter this software in
any way" (which could easily be construed as ambiguous).

Those are licenses (literally, conditions of use / distribution). They are
evidence enough that I'm allowed to use or distribute the software. In a court
of law, they'd be pretty damning if, say, Google wanted to kick up a fuss.

But if those licenses (or parts of them) are deemed unenforceable, it doesn't
mean that the author has waived every single right that they would have had
anyway, unless they has said that specifically. Absence of other terms can't be
interpreted as an assignment to the public domain.

Here, copyright law should still prevail even if bits of your licenses fall
down. Yes, in certain licenses, you have a lawyer who's said that specifically
for you (GPL mentions such things), and if you're arguing about your poor
license in court you need a good lawyer (like with any court case) and you'd
probably do better if you have a well-written license that covers all corner
cases.

I know that courts have to be careful to get everything exactly right but the
ramifications of the decision that they would have made if left alone were not
only incredibly dangerous to OS but to everybody... and pitifully stupid.

The gist of the matter seemed to stem from confusion of what happens if you
*don't* accept the terms of a software licence (and, specifically, what happens
if the software is free/Free/Open). Somehow the court / lawyers interpreted the
answer to this situation as "you can do then whatever you want with the
software" (literally allowing stripping copyrights, ignoring all copyright
laws etc.), something which would not only impact on OS code but on every piece
of software in the world.

This is equivalent to: Don't accept Microsoft's EULA? Run Windows anyway and
get to copy it as much as you like without comebacks. Even if limited only to
"free" software, this would still impact thousands of pieces of
software (including, I would assume, beta and "trial" versions of
Microsoft's paid-for products if you said it "only" applied to free
software) and be laughed at worldwide as complete incompetence.

There were also some blatant problems with the way that the person in question
was distributing the software in question (which, as far as I can tell, was only
a set of definition files that help certain parts run a model railroad - it
doesn't appear to be actual code as much as a set of copyrighted XML data
files).

To use an analogy, if I wrote a book, slapped my copyright on it, and sent it to
publishers and they don't agree with my "license" (i.e. my conditions
for them publishing/distributing it), they would have been allowed to do
whatever they want with it including (as was done in this case): removing my
copyright, claiming it as their own, selling it on, suing me for damages caused
by my giving my manuscript to other publishers, etc.

There were also a lot of patent issues with someone who obviously was not
playing ball with the courts: patents on blatantly obvious things (what's new?),
"illegal" patents that hadn't had prior art properly declared despite
overwhelming evidence that they were aware of some, patents that were revoked by
the owner to "help" the court case but only after years of court-time
and without informing the court that's what they were going to do, and then
those same patents were copied verbatim into new patents (which isn't allowed in
itself!).

There were also a LOT of motions brought with perfect legal justification and
then denied by the court, including the highlighting of a lot of dirty tricks,
lacks of legal deligency and downright factual inaccuracy.

It seemed, rather, that the original court didn't understand any of the issues
at stake and wasn't interested in any other court/experts opinion. I could
understand either one of those being true but it appears that both were. The
EFF and many others volunteered their help and filed motions describing the
problems of the case clearly, and even offered to appear in court, and had to
fight constantly to get heard.

Whether there were just a lot of "bad" lawyers in the court and the
court tired of them and their ways, whether the court just wasn't interested in
a case it didn't understand or whether the court had a personal grievance
against a particular person, it was still a shoddy show of application of not
only existing laws but also "what was meant" by certain agreements and
what should happen anyway, even if those agreements were completely invalid.

If I hire out (or even lend) my car to somebody and they don't agree with my
conditions of hire, they don't get to take my car anyway, claim it as their own
and sell it on. At least not without severe reprisals.

In the end, it went to appeal to a higher court that actually understood it all,
showed an interest, found a few little niggles here and there and in the end
realised that there was only one possible answer that didn't make the US courts
a laughing stock with regard to copyright holders rights.

To be honest, it was a bit of a sham that so much effort was needed to get such
a basic decision. I'm not such that other countries would have got themselves
into this mess in the first place. Germany held up the GPL (in part) and didn't
even entertain doubts of this nature, and it's sure that they would have been
brought up if they thought that the court would fall for it.

I have a feeling that if this had gone through the appeals court, you'd have had
some of the largest software manufacturers, authors, publishers, printers,
anyone that uses copyright, in the world on the court's back within seconds of
them discovering that - it rips the entire concept of copyright up.

[ Reply to This | # ]

Public awareness - it's hit the Beeb!
Authored by: elderlycynic on Friday, August 15 2008 @ 04:48 AM EDT
Article

[ Reply to This | # ]

OSI never worked well
Authored by: Anonymous on Friday, August 15 2008 @ 04:51 AM EDT
Sorry - OSI never worked well. They came out of nowhere and co-opted someone
elses ideas as their own.

As has been shown, their wishy-washy open-source idea was easily corrupted by
parties pushing their own agenda. The sooner they lose any clout with the
'community' the better, they serve no useful purpose.

[ Reply to This | # ]

The need for a new license-vetting process
Authored by: nb on Friday, August 15 2008 @ 08:34 AM EDT
PJ is absoultely right about the need for a better license-vetting process. The standard advice "Simply use one of the already-existing lawyer-reviewed licenses" simply doesn't help if you're looking for something which is (from the perspective of tolerance for proprietary derivative works) between the GNU GPL and totally-permissive licenses like the MIT X11 license, but in a different way than the LGPL. I have a draft lincese (which I'm calling "FRRL", the "Free RewardRights License") with a mini-website at FRRL.info implementing what is IMO a new and interesting concept for licensing software and information goods in general. But where can I find the resources for the critically important legal review of the license? I asked the "Software Freedom Law Center", which referred me to the "license-discuss" mailing list of the "Open Source Initiative", but there I only got feedback from one person, who is not a lawyer and who expressed hostility to the concept of the FRRL. Therefore, from these experiences I conclude that currently no suitable meachnism exists through which any license author can find the necessary legal advice for the step from a draft license to license publication.

[ Reply to This | # ]

OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: Anonymous on Friday, August 15 2008 @ 02:40 PM EDT
There's a good overview of the decision by Maureen Garde and Jeffrey Neuburger at Proskauer Rose. "Federal Appeals Court ruling helps dispel uncertainty for business users of open source software licenses."

[ Reply to This | # ]

OK. But What Does It Mean? (Jacobsen v. Katzer)
Authored by: RussNelson on Monday, August 18 2008 @ 02:11 AM EDT
PJ, it sounds like you're asking OSI to do what we've already started to do.
Please see http://crynwr.com/cgi-bin/ezmlm-cgi?18:2

[ Reply to This | # ]

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