Weekly Edition
Return to the Front page
| |||||||||||
|
| |||||||||||
Why the JMRI decision matters
The Java Model Railroad
Interface (JMRI) project is not one to sit at the
top of the Debian popularity contest results; it provides tools for model
railroad enthusiasts. But the legal wrangling around JMRI has made it one
of the more important projects in our community at this time. JMRI has
suffered some legal setbacks, but much of that was turned around by the US
Federal Circuit Court of Appeals on August 13. The result is a
vindication for much of the legal reasoning behind free software licenses.
JMRI was charged with patent infringement back in 2006. As part of the legal counterattack, JMRI developer Robert Jacobson charged patent holders Michael Katzer and Kamind Associates, Inc. with copyright infringement for its use of JMRI code. The Federal District Court in this case had concluded that the terms of the Artistic License were contract terms, and not condition on the copyright license itself. That ruling was seen as a major setback. The authors of free software licenses have gone to great lengths to restrict themselves to copyright licensing and to avoid contract law altogether. There are a couple of important reasons for this:
Both points are crucial. If you look at clause 5 of the GNU General Public License (version 2, in this case), you read:
You are not required to accept this License, since you have not
signed it. However, nothing else grants you permission to modify
or distribute the Program or its derivative works. These actions
are prohibited by law if you do not accept this License.
Anybody who distributes a copyrighted work will be doing so in violation of the author's exclusive rights. If a distributor has a license from the owner, though, then this distributor has a legal defense. The question raised in this case was, in summary, this: if somebody distributes free software without adhering to the terms of the license, does that somebody still have a license at all? The District Court ruled that this person did, indeed, still have a license to distribute the software, though they might be liable for damages for not having followed all of the terms. The Appeals Court, instead, said that failure to hold to the conditions meant that the license simply did not exist; distributing free software in a manner contrary to its license is copyright infringement, not breach of contract. This decision was reached in a sufficiently high court that the conversation should be finished in the United States; we now have a high-level legal precedent that software licenses are licenses, and that they can be enforced with injunctions. In US-style law, precedents are everything; the absence of a clear precedent always causes a certain degree of legal uncertainty. We now have that precedent; as a result, anybody seeking to enforce a free software license in the US is now standing on firmer ground. There are some other interesting conclusions to be drawn from this ruling. Copyright law in the US does not recognize any sort of moral rights to copyrighted works; it is, in classic American style, all about the protection of economic rights. Some have argued that, since free software is, well, free of charge, there is no economic harm in violating its licenses, and, thus, copyright law has nothing to say. But the Appeals Court saw things differently, stating that there was a clear economic interest in the Artistic license:
The clear language of the Artistic License creates conditions to
protect the economic rights at issue in the granting of a public
license. These conditions govern the rights to modify and
distribute the computer programs and files included in the
downloadable software package. The attribution and modification
transparency requirements directly serve to drive traffic to the
open source incubation page and to inform downstream users of the
project, which is a significant economic goal of the copyright
holder that the law will enforce.
So the reasoning that free software licenses are unenforceable due to the lack of an economic interest fails to hold water. Similarly, the interesting idea that free software license incompatibility does not really exist, recently promoted on LWN by Brian Cantrill, seems unlikely to stand up to serious scrutiny. Some voices on the net have worried that this ruling could also give sharper teeth to exploitive proprietary end user license agreements. The Electronic Frontier Foundation is one example:
While we're pleased to see a panel of learned judges endorse the
legal foundations of the open source software paradigm, the
decision may also encourage proprietary software vendors who
frequently fill their "end user license agreements" with
restrictions that are denominated as "conditions" on the license.
If violating a "condition" in a EULA results in copyright infringement liability, what's to stop a software vendor from imposing conditions that are unrelated to copyright law (e.g. an agreement not to disparage the copyright owner, or to wear pink bunny ears on Tuesdays), or even antithetical to copyright law (e.g. a waiver of fair use rights)? If this comes to pass, restrictions on reverse engineering, publication of reviews, lack of bunny ears, etc. may, indeed, become easier to enforce. Such an outcome would not necessarily be a bad thing for users of free software, though. If anything, it will simply make the value of freedom that much more clear. Finally, it is worth noting well that this outcome did not just happen on its own. Behind the scenes, concerned lawyers from groups like the Stanford Center for Internet and Society and the Electronic Frontier Foundation, who have understood all along what was at stake here, have put in a great deal of work to get this ruling. They were successful despite the fact that the old Artistic License was not the strongest position to be arguing from. Many of us would prefer to not have to think about legal issues much of the time. But we should be happy and grateful that some very capable people have been willing to put in the effort to defend our rights in cases like this one. (The full ruling is available in PDF format, or in plain text on Groklaw). (Log in to post comments)
free-software licenses vs. EULAs Posted Aug 14, 2008 22:35 UTC (Thu) by stevenj (guest, #421) [Link] You are required to accept a unilateral license only if you want to do things that are forbidden by copyright law but which are permitted by the license.That's why free-software licenses have proven so easily enforceable, time and time again: if you redistribute the software, then you are either violating copyright law or you accepted the license. With an EULA, it doesn't seem so clear. Once you have legally bought the software at a store and brought it home, there's a reasonable argument that you already have the right to run the software (the "copying" required to load the software into memory notwithstanding). Hence you don't need any additional license, and you don't need to accept the EULA. Indeed, while free-software licenses increase what you can do with the software compared to copyright law, EULAs tend to do the opposite (claiming to forbid reverse-engineering, overturn the first-sale doctrine, and so on). My understanding is that the case law on this kind of thing is somewhat mixed and unclear, but IANAL. Still, I wish the EFF attorney had made the distinction clearer between free/open-source licenses and EULAs.
Result for device importers Posted Aug 15, 2008 2:04 UTC (Fri) by dmarti (subscriber, #11625) [Link] Proprietary software executive: "Hey, does this mean we can make our EULA stricter?"Copyright lawyer: "No. That will be $3000.00 for research time." But one of the many implications of this case is that it will probably be easier to use the US Customs Service to seize products with GPL-violating embedded code.
free-software licenses vs. EULAs Posted Aug 15, 2008 2:42 UTC (Fri) by pizza (subscriber, #46) [Link] > Once you have legally bought the software at a store and brought it home, there's a reasonable argument that you already have the right to run the software (the "copying" required to load the software into memory notwithstanding). Hence you don't need any additional license, and you don't need to accept the EULA. Actually, under US law, this "incidental" copying necessary "as an essential step in the utilization of the computer program" is explicitly not a copyright infringement. (USC 17 Sec 117)
free-software licenses vs. EULAs Posted Aug 15, 2008 9:38 UTC (Fri) by cortana (subscriber, #24596) [Link] Tell it to the court that found in favour of Blizzard over that World of Warcraft bot case. :(
free-software licenses vs. EULAs Posted Aug 15, 2008 12:54 UTC (Fri) by pizza (subscriber, #46) [Link] The thing is, that WoW Bot case wasn't (arguably) covered by this, because the in-ram copy he made (to hack on?) wasn't "essential to the operation of the computer program". I'm not familiar with the technical details of the case, so I'm speculating more than I normally do. :)
free-software licenses vs. EULAs Posted Aug 23, 2008 16:45 UTC (Sat) by giraffedata (subscriber, #1954) [Link] You are required to accept a unilateral license only if you want to do things that are forbidden by copyright law but which are permitted by the license. You may have missed the essence of the acceptance distinction between contract and license. There's a legal concept of accepting a contract. Acceptance is an identifiable event -- a court can determine the moment that it happened. It's something the acceptor does, such as writing his name on a piece of paper or clicking a mouse, that indicates the acceptor's intent to form a contract. There is no such acceptance of a license. You aren't required to accept one ever. You can't reject one.
if you redistribute the software, then you are either violating copyright law or you accepted the license.I would say, "you are either violating copyright law or you are taking advantage of the license." The End User License Agreement, which is a contract in which the user promises things in exchange for a copyright license, obviously touches both worlds.
Why the JMRI decision matters Posted Aug 14, 2008 23:01 UTC (Thu) by mattmelton (subscriber, #34842) [Link] On the face of it all this is the right ruling. They dont appear to be contracts because they lack both privity and consideration. While courts are likely to go to great lengths to find both, I doubt they can in the normal end user scenario. Nothing moves, let alone nothing of economic value (however small). But then this ruling all but establishes consideration by saying participation in the process of open source infers economic value. Someone who takes up a restrictive licence and is bound by it can argue that they have suffered a detriment, which has an economic value, and that this is sufficient for consideration. The licence sets up privity. A failing law student, Matt
Why the JMRI decision matters Posted Aug 14, 2008 23:17 UTC (Thu) by bojan (subscriber, #14302) [Link] I think your argument is pushing it a bit. The court was quite clear: > "Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material." and > "Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right." Note the key word "copyright" in both sentences.
Why the JMRI decision matters Posted Aug 14, 2008 23:42 UTC (Thu) by rickmoen (subscriber, #6943) [Link] As bojan says, the important part of the decision is where the Federal Circuit (Court of Appeals) ruled that Jacobsen's licence (AL 1.0) qualified as a grant under copyright law, irrespective of its merits when considered under contract law. That's important because then plaintiff can ask for "court of equity" remedies (injunctions, court orders), whereas contract claims support only "court of law" remedies (economic damages). Please see further explanation of these two distinct bodies of law, if interested. So, required elements of contract were actually not at issue in this case. However, had they been, you would have, in my view, been overinterpreting those of privity and consideration. (This happens over and over, in discussions among computerists.) The requirement of privity of contract is really just a bar to holding to a contract, or granting contract enforcement rights to, people who never participated in the offer or acceptance -- third parties who didn't pose the offer or the acceptance. There is no requirement in contract law that the actual offerer or the actual acceptor ever meet, exchange e-mail, etc. Contract formation can occur entirely through conduct that establish the offer and acceptance separately. Consideration, as you say, gets found rather easily. It is essentially anything that can be reasonably found to have non-zero value, including foregoing of a right or assuming of an obligation that one doesn't otherwise have. Rick Moen
Why the JMRI decision matters Posted Aug 23, 2008 17:19 UTC (Sat) by giraffedata (subscriber, #1954) [Link] While I always have to bite my tongue in these discussions because I'm not a copyright lawyer, I am a contract lawyer, so I can effectively argue the other side here. I believe all the open source copyright licenses could be made indisputably contracts with only slightly different wording. (For example, substitute "A and B agree ..." for "A grants to B ..." I don't see lack of privity. The parties to the dispute are actual parties to the contract; you can't get any more privity than that. And I see plenty of consideration, of the regular kind -- no need to resort to detrimental reliance. Consideration by the author is permission to copy. Consideration by the distributor is giving people the source code and all that. Giving people source code must be of value to the author or he wouldn't have tried so hard to get the distributor to do it. Here's a settled contract scenario that is similar to what goes on with free software: I publish in the newspaper an offer to pay $100 to anyone who works a four hour shift at any local charity. So you work a shift. You and I are parties to a contract, your consideration is the work you did, mine is the $100, and I owe you $100.
Someone who takes up a restrictive licence and is bound by it ...The only person bound by a license is the licensor. So what you mean is, "someone who agrees to certain things in exchange for a license ..."
Economic interest in GPL ? Posted Aug 15, 2008 0:44 UTC (Fri) by mikov (subscriber, #33179) [Link] OK, so I understand that the attribution requirement serves the economic interest of the author. How does that work for GPL though ? Where is the economic interest ? Correct me if I am wrong, but with GPL the only requirement is to provide a copy of the GPL with the source, so the only one who is mentioned is the FSF. Hope they are getting the economic benefits :-) Seriously, isn't this a very easy way to torpedo the GPL in court by proving that in contrast with the Artistic and other licenses it doesn't serve an economic interest ?
Economic interest in GPL ? Posted Aug 15, 2008 1:38 UTC (Fri) by gdt (subscriber, #6284) [Link] How does that work for GPL though ? Where is the economic interest? The court found that there is an economic interest in the Artistic license, and the arguments they used would be apply to the GPL too. The relevant portion of the judgement:
On Jon's comments regarding copyright license v. contract: contracts also require a consideration -- a payment of something of value -- which is difficult to reconcile with the "free beer" aspect of FOSS. Because this is a grey area (contract consideration is usually simply financial), precedents vary widely between countries and building an international free software movement upon contract law would be much more difficult than using copyright law.
``Economic benefit'' a time bomb? Posted Aug 15, 2008 3:00 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link] I'm really worried about this ``economic interest'' stuff. What happened to a copyright being the right to prevent copying, period.Does this mean I can start selling copies of Disney's Snow White, since Disney isn't selling it, hence getting no economic benefit? ¹ The court's bringing economic benefit into it worries me because it seems totally unnecessary, and its existence means that some other court could seize upon it to strengthen it, requiring an actual exchange of money. That would truly cook our goose. ¹ Yeah, I know—they're getting the benefit of making it scarce.
``Economic benefit'' a time bomb? Posted Aug 15, 2008 3:19 UTC (Fri) by bojan (subscriber, #14302) [Link] You should not be worried. Consider this sentence: > "There are substantial benefits, _including_ economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties." The key word above is "including". So, the court sees that economic benefits are just part of the copyright holder's interest here. So, to answer you question: "What happened to a copyright being the right to prevent copying, period." - nothing. It still there, alive and well. PS. In case you are wondering what those other, non-economic benefits of doing FOSS may be, I'll mention just a few: "being smart bragging rights", "being a nice guy rights", "supporter of community rights", "betterment of humanity rights" etc. All these things are important to these copyright holders and the court knows that.
``Economic benefit'' a time bomb? Posted Aug 15, 2008 15:51 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link] The key word above is "including". So, the court sees that economic benefits are just part of the copyright holder's interest here. So, to answer you question: "What happened to a copyright being the right to prevent copying, period." - nothing. It still there, alive and well.Sure, it's there. My question is, why was anything else brought into this case at all? PS. In case you are wondering what those other, non-economic benefits of doing FOSS may be, I'll mention just a few: [....] All these things are important to these copyright holders and the court knows that.Yes, but, as above, why should the court care? [Talks through hat.] The only benefit confered by a copyright monopoly is that of society receiving (eventually) another work in the public domain. (Per the U.S. Constitution.) Seems no one else's benefit is involved here. If a piece of Free Software is allowed to be taken proprietary, the author is less likely to create another, thus depriving society ninety-nine (or whatever) years hence. So, if allowing a license to be flouted reduces the benefit to the public domain, it should not be allowed, and no other considerations, either monetary nor intangible benefits in the present, need, nor should, enter the decision. I guess that's my core question: why did the judge bring in anything other than ``unlicensed copying bad for public domain, therefore not allowed.''? Time to go read the decision...
``Economic benefit'' a time bomb? Posted Aug 15, 2008 17:39 UTC (Fri) by wahern (subscriber, #37304) [Link] Because since 1978 the public domain ceased to exist?
``Economic benefit'' a time bomb? Posted Aug 17, 2008 23:57 UTC (Sun) by bojan (subscriber, #14302) [Link] > The only benefit confered by a copyright monopoly is that of society receiving (eventually) another work in the public domain. And for society to receive that benefit, copyright holders are equally promised benefits coming their way, through the power to exclude. > Yes, but, as above, why should the court care? The court cares because the state promised copyright holders would get the benefits, whatever they may be.
``Economic benefit'' a time bomb? Posted Aug 19, 2008 8:17 UTC (Tue) by ekj (subscriber, #1524) [Link] The only benefit confered by a copyright monopoly is that of society receiving (eventually) another work in the public domain, you say. That's not actually true. If it was, there would be no reason to have copyright at all for software. The eventual benefit, another program in the public domain in a hundred years (give or take a few decades) has essentially zero value. But there is one benefit more; copyright stimulates (or is meant to, anyway) the CREATION of creative works. The theory goes, if we didn't have it, less books would get written, less software created. Having the book written is beneficial to society -- even before it falls in the public domain. We're paying a much too high price though. Does anyone HONESTLY believe that much less software would get created if copyright was only, say 20 years ? I sure as hell don't. If we could get the same for a lower price, why then, do we persist in paying the higher price ? It's just downright silly.
For GPL it's ever easier Posted Aug 15, 2008 7:22 UTC (Fri) by khim (subscriber, #9252) [Link] US Code Collection, Title 17 (copyrights), Chapter 1, Section 101: 'Definitions': 'The term "financial gain" includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.' GPL is created around this "expectation of receipt" of other copyrighted works. It's GPL's much discussed "viral nature". When the law itself claims it's called financial gain it's kinda hard to imply it's not "economic benefit". But yes, if you'll find gullible judge anything is possible - but that's the fact of life.
financial gain should be pretty easy to demonstrate, regardless Posted Aug 15, 2008 17:42 UTC (Fri) by stevenj (guest, #421) [Link] Even without that, it should be pretty easy to demonstrate financial benefits to authors of free software. For example, I personally have received job offers, consulting contracts, speaking invitations (which in turn improve my professional prospects), etc. as a direct result of free software that I've written. I suspect that authors of any widely used free software have similar experiences.
``Economic benefit'' a time bomb? Posted Aug 23, 2008 0:55 UTC (Sat) by giraffedata (subscriber, #1954) [Link] What happened to a copyright being the right to prevent copying, period. What happened to it? It just never existed. Who told you it did? There isn't much in modern law that is just an absolute no-questions-asked rule. Laws have roots in reason and as Jon says, for US copyright law, those roots are economic incentive. So yes, courts will always go back to that when interpreting copyright law. They don't want a law to turn into some monster that does things it was never intended to do.
Economic interest in GPL ? Posted Aug 21, 2008 9:50 UTC (Thu) by rwmj (subscriber, #5474) [Link] Actually I think the court missed the main point of economic interest in free software which is the fact that it is an alternative to licensing expensive commercial software. How much would it have cost Lexmark to write their own operating system for their printers? Billions probably. Or to license something like WinCE or QNX? Millions? How much would it have cost the people who stole the JMRI software to write those decoder definition files instead of stealing them? I don't know but certainly some significant chunk of programmer time and hence money. So for companies to claim that this is just some stuff that they got for free off a website and they can do what they want with it because it has no value is extremely disingenuous. Rich.
Economic interest in GPL ? Posted Aug 15, 2008 7:47 UTC (Fri) by jamesh (subscriber, #1159) [Link] > Correct me if I am wrong, but with GPL the only requirement is to > provide a copy of the GPL with the source, so the only one who is > mentioned is the FSF. Hope they are getting the economic benefits :-) Take a look at section 1 of the GPLv2 or section 4 of the GPLv3. They require that you keep copyright notices intact when distributing copies. Furthermore, section 2(c) of v2 and 5(d) of v3 extend this to interactive programs. If the program displays a copyright notice to the user when run, it is a breach of the license to distribute modified versions that remove said notices. So removing attribution is also a breach of the GPL.
Economic interest in GPL ? Posted Aug 21, 2008 1:00 UTC (Thu) by JoeBuck (subscriber, #2330) [Link] It's also a breach of almost all of the non-copyleft free software licenses (BSD, MIT, Apache, etc) to remove copyright notices.
Economic interest in GPL ? Posted Aug 21, 2008 16:07 UTC (Thu) by vonbrand (subscriber, #4458) [Link] It's also a breach of almost all of the non-copyleft free software licenses (BSD, MIT, Apache, etc) to remove copyright notices. AFAIU, this would be a breach of copyright law, that the license reminds you of your obligation in this case is legally irrelevant.
Economic interest in GPL ? Posted Aug 15, 2008 14:54 UTC (Fri) by lambda (subscriber, #40735) [Link] It doesn't matter who is mentioned in the license. When I license code under the GPL, I am doing it with the understanding that if anyone modifies the code, I (and anyone else) will be able to incorporate their modifications into my version and thus derive economic benefits from their changes. So, the GPL explicitly does provide an economic interest to the author of the software. A large part of the economic benefit of free software is that not only does the original author have access to and license to distribute any changes, but anyone does; thus, it is possible for anyone in a large community to change, fix, and support the software.Additionally, the author of the software is mentioned in the copyright notice when you license something under the GPL, just not in the license itself. You write "Copyright 2008 name of author", and provide a pointer to the GPL, so you are actually mentioning your copyright claim (under recent case law regarding abandoned copyrights, this is actually fairly important, because it means that it's harder for someone to prove that they went through reasonable steps to contact the copyright holder before treating something as if it were abandoned).
Economic interest in GPL ? Posted Aug 25, 2008 20:21 UTC (Mon) by spitzak (subscriber, #4593) [Link]
The GPL allows the original author to profit from dual licensing. If the GPL did not restrict what users could do with the software, then there would be no value in selling a differently-licensed version. And the GPL version works to "advertise" and otherwise popularize the software and thus increase the value of the dual-licensed version.
Why the JMRI decision matters Posted Aug 15, 2008 3:05 UTC (Fri) by bobort (subscriber, #5019) [Link] The references to Gilliam v. ABC caught my eye. Who would have thought the movie Brazil would have a legal effect on free software licensing? That decision apparently played a key role in the earlier (flawed) ruling, establishing that copyright only grants "economic" rights and not "moral" ones (e.g. the right not to have a ridiculous happy ending added to your movie).
Why the JMRI decision matters Posted Aug 15, 2008 13:23 UTC (Fri) by epa (subscriber, #39769) [Link] As far as I can see Gilliam v. ABC is about Monty Python's Flying Circus not the movie Brazil.
Easier resrtrictions Posted Aug 15, 2008 12:22 UTC (Fri) by NAR (subscriber, #1313) [Link] restrictions on reverse engineering [...] may [...] become easier to enforce. Such an outcome would not necessarily be a bad thing for users of free softwareAs far as I see, restrictions on reverse engineering is a bad thing for users of free software, e.g. when they have an NVidia graphics card which doesn't work that well with the binary only drivers...
Easier restrictions Posted Aug 21, 2008 0:38 UTC (Thu) by speedster1 (subscriber, #8143) [Link] Reverse engineering restrictions are indeed frustrating to Free Software users, but I believe our editor was speculating that the overall effect of totally onerous EULAs being legally enforceable would be to strongly motivate the beleaguered users of such commercial software to migrate over to Free Software alternatives.
Made my day Posted Aug 21, 2008 3:04 UTC (Thu) by utoddl (subscriber, #1232) [Link] It's stuff like this that makes me glad to have contributed a few bucks to the EFF. I wish they had an option on their contribution page to keep the bumper sticker though. I've got enough of them already, and my bumper is rather small to start with. I hope they're cheap. (The bumper stickers I mean.)
Length of copyright Posted Aug 21, 2008 9:40 UTC (Thu) by addw (subscriber, #1771) [Link] How long before copyright on software starts to expire ?OK: this is prob a long way off, but ... wikipedia gives some info it varies a lot by country, but this seems to talk about books, films, etc. Where does software fit in ? It would seem that copyright expiry would affect FLOSS more than proprietary s/ware. Useful bits of FLOSS code will be usable once that version of the source hits expiry and could then be used in new proprietary code. Useful bits could well remain useful for many years. Proprietary code is (usually) only available as a binary and thus is only useful as a whole and if you have a suitable machine/OS to run it under.
Length of copyright Posted Feb 2, 2009 19:11 UTC (Mon) by dvdeug (subscriber, #10998) [Link]
In many countries, the duration of copyright is the same for everything. Most of the world is life of the author plus 50-70 years.
US copyright duration is a complex mess of grandfather clauses, but
* any code first published in the US without a copyright notice prior to 1978 (or 1989 in some cases) is in the public domain. A host of other clauses may apply to put it in the public domain in this period, too minor in this case to be noteworthy here; see http://www.copyright.cornell.edu/public_domain/ .
* any code published before 1978 with a copyright notice has 95 years of copyright from publication
* any code published after 1977 and before 2003 by an author who died before 1978 will be in copyright until 2048
* withstanding the last clause, code published after 1977 will be under copyright for the life of the author plus 70 years, or a flat 95 years if a work of corporate authorship
There is some body of code prior to 1978 that is in the public domain due to lack of copyright formalities; AT&T settled with Berkeley over early Unix because the judge refused a preliminary injunction on Berkeley because he found it likely that Unix code had so fallen into the public domain. http://www.ibiblio.org/jmaynard/ says "IBM, by corporate policy, does not assert copyright ownership of any software which it distributed without copyright notices." Other than that, it's all under copyright for a long, long time.
|
|||||||||||