RSSNew scares loom over open source license lawsuits
By Jacqueline Emigh | Published April 29, 2009, 4:38 PM
Within the short "tradition" of open source lawsuits, users have typically needed to worry their heads only about breach of contract concerns. But last summer, in a case called Jacobsen v. Katzer, the US Court of Appeals for the Federal Circuit opened up copyright claims as a new route for people looking for financial damages.
Open source developer Robert Jacobsen sued Matthew Katzer and Kamind Associates, producers of commercial software used with model trains, alleging that Katzer and his company violated copyrights around the Java Model Railroad Interface (JMRI), an open source software project licensed under what's called the Artistic License.
In a separate action, the open source group known as The Free Software Foundation (FSF) has now filed suit against Cisco, charging that Cisco is infringing various copyrights licensed under two other types of licenses: the General Public License and Lesser General Public License.
Some have hailed last August's ruling in Jacobsen v. Katzer as a victory in terms of protecting the intellectual property rights of open source developers. On the other hand, with new legal precedent now set, users of open source -- including both corporate and commercial developers incorporating open source code into their software -- now need to exercise extra caution to avoid getting hauled into court, according to Jonathan Moskin and Howard Wettan, two attorneys at White & Case LLP.
Although leaving some questions still unanswered, last summer's court decision "held that breach of an open-source license does not merely permit a breach of contract claim, but that violating the 'conditions' to the intellectual property license creates a cause of action for copyright infringement -- with associated [financial] remedies," the two lawyers wrote, in a recent article in The Intellectual Property Strategist, a legal newsletter.
During an interview with Betanews, Moskin contended that after the article with Wettan was published, he was accused by one tech publication of "being some sort of a shill" for Microsoft. "But nothing was further from my mind," Betanews was told. Moskin said that instead, he'd simply wanted to warn users and their own lawyers about some new legal risks stemming from open source code.
White & Case LLP, the firm where Moskin works, has represented Microsoft in anti-trust actions before the European Union. The tech publication that made the accusation against Moskin has since apologized, according to Moskin.
"I'd just like to put out a call to developers that they need to be more careful in how they compile code," he told Betanews.
Specifically, the US Copyright Act provides for statutory damages of between $750 and $150,000 "for willful misconduct" per infringed work, Moskin and Wettan wrote in their article.
"An additional consequence of the Federal Circuit's opinion is that, by pursuing copyright claims, an open source licensor may now be able to sue downstream licensees for copyright infringement."
During the interview with Betanews, Moskin offered the example of a bank hiring a software developer to write a piece of billing software for use by its customers.
"Let's say the developer downloads a piece of open source software. The bank thinks its code is proprietary, but it actually incorporates open source. Other businesses [using the billing software] might then also be liable for copyright infringement," Moskin illustrated.
After last summer's ruling in Jacobsen v. Katzer, the case was remanded back to District Court in California. As part of a decision issued by the District Court in January, Jacobsen was denied a preliminary injunction against Katzer due to a lack of evidence showing actual harm "suffered or immiment" due to any copyright infringement. Yet that ruling does not prevent the District Court from issuing an injunction after hearing the merits of the case, according to court documents.
Meanwhile, in its case against Cisco, the FSF is demanding not just actual or statutory damages, but also the return of any profits made by Cisco due to Cisco's alleged copyright violations.
Ok.. I have a certain amount of negative views on the so-called writers at Bn; however, if one is going to come to this site don't expect well-written news but articles design to generate clicks. As far as Ms. Gunn is concern, I assume she would like to considered a "woman" and not a 12 year old girl and since ADD seems rampant among the so-called writers at BN, it might be nice to take a trip down memory lane on some of the 12 year old girl Angela. If you want to apply standards to one person or SN then first apply them to yourself.
Now anything here can be found at other sites and better sites that actually do real benchmark testing and research. All the programs can be found at other sites so to anyone here, if you stay then you have to accept Bn as a 3rd rate site that caters to advertisers. So, you have a choice, either continue coming here or go to real news sites and get more in-depth reporting and not lame 12 year old "girlish" remarks from writers or you can stay. If you stay then you have no right to complain about anything. The choice is yours. for me, I'll be going to other sites because I am tired of the "12 year old girlish" articles written by this staff.
The best protest against Bn is not complaining in a post because that generates clicks for Bn but to leave. If a lot of people did that then Bn just might dump these wanabee writers and get real writers that do real benchmark testing and research and don write 12 year old "girlish" articles. The choice is yours.
So long and keep up those insightful 12 year old "girlish" articles.
Score: -15
|About time that code was treated as a physical good (like electronic components). Every product should have a Bill Of Materials, saying where it came from, who the "manufacturer" was, what price, what license or contract. People have been getting away with plagiarizing code (taking without consent of the owner). It is easy to know what the license obligations are (educate your developers, keep track or automate it. Tere are tools out there that don't cost much- Protecode or others- and do the job for you), and you wouldn't have an excuse. At the end, there should be no excuse for using someone else's property without having their consent.
Score: 0
|Oh yeah...
Effectively copyrighting lines of code. And we can copyright sentences and prevent reuse.
That's workable!
LOL!
Score: 0
|Based on what I've seen, Moskin may not be a "Microsoft Shill", however he does have a monetary interest in Microsoft. Under the circumstances, he either should not have written anything, or should have prominently declared this at the start of the article.
As to his conclusions, how do I say this politely? The man is an idiot. Jaconsen vs Katzer was a clear case of IP theft. Is he trying to say that Katzer should not be made to pay for that theft? If someone stole source code from his client Microsoft, should that person/company not have to pay Microsoft?
As to a contract programmer using code that he/she shouldn't, well that's why you get your contract programmer to sign a CONTRACT.
Sheesh.
Score: 0
|now this is real news; hard cutting edge news:
http://news.cnet.com/830...ml?tag=TOCmoreStories.0
I have to go now and get my broker to buy radio shack stock.
Score: -13
|On another point- instead of writing a half page of meandering BS, especially since ADD is running wild, just say "you're an idiot" or you're a ****wad".It accomplishes the same thing and takes up less space.
Score: -14
|I had to stop in and comment and see how many mods I get. Not to toot my own horn or jerk off (oops..pardon me while I wipe the screen..there much better), but I posted this some time ago in a galaxy far away when Ms was sued and lost:
thx31 Apr 12, 2009 - 2:14 PM edited Setting aside the MS issue, This verdict on a patent that never was brought to market should case a pale over most software that uses a product key to activate. Even programs on this site may have a 15-30 day trial period but then you have to use a legal activation key to continue to use the program. This verdict would seem to put most software at risk. Now I am sure this person sued MS because they have money but if we take this verdict to its logical conclusion then all software may be at risk. Of course, if he gets the award then he won't have to bother suing other companies.
This also brings up the issue in the tech field that it is almost impossible now to build new technology that doesn't have some basis on patent technology that never went to market.
This case illustrates that we need to completely revamp our whole patent/copyright laws to recognize 21 century reality.
Even open source could be at risk since I suspect that if one looked closely at open source, you could find older patent technology. Once example would be browsers and another would be search engines.
I would also suspect that apple might need to be careful as if you were to break down their code on their various products you would find older patent technology that hasn't been brought to market.
Score: 3
Let's go for the record on the mod score.
Finally, I fully expect open source people to finally come out of the closet and good for them. It must get cramped in there.
Score: -14
|Every article on betanews has dozens of comments by the same two morons who endlessly *LOL*, ;-), LMAO!!!!!, *shakes head*, ;-)) *laughs*, and otherwise relieve themselves in public. Betanews is really lucky to have not one but two hyperactive and dedicated village idiots.
Score: 1
|One of the resident idiots did not waste any time to claim his rightful place.
Score: 1
|You forgot *yawn*, which is easily as 12-year-old-girlish as LOL or LMAO. (But I hear you, o I hear you.)
Score: -13
|And to think that modularity and reusability are but two features of modern code...
That is, unless you actually do it.
;-)
I'ze skeered. I'ze really skeered...
Score: -14
|This is no different than with commercial software. It is FUD to act like this is a risk that exists with open source that is not the same risk in commercial software. If developer A writes commercial code which is stolen by developer B who sells it, the purchasers in theory could be responsible to pay developer A damages, just the same if the stolen code is open source or not. If you "buy" a pirated Photoshop program unknowingly from a spam email, you could be responsible for copyright infringement even though you weren't the first copier. In theory, all this could happen, but in practice copyright is not enforced this way. Suing anyone other than the original thief is very rare. However, patent lawsuits do exist against downstream users, like when many companies were sued for MP3 use even though they had already paid for it.
Score: 0
|So, let me get this straight: An open souce dev can sue a dev who "stole" the open source code and called it his own. If that dev sold his product (and wrote it specifically for) another company, the open source dev can also sue that company for copyright infringement, even if that company did not know it's developer stole code.
So then the developer who stole the open source code could potentially get sued by the company who is getting sued by the open source developer.
Nice.
I see a lot of money changing hands here and the lawyers are getting all. I should have gone to law school.
Score: 0
|Why should a business who, as far as they knew, bought a legitimite product from a reputable company, come to find out that product was actually stolen AND get sued by the actual owner of the product? WTF?! It sure wasn't willful infringement on that business's part! If anything the business that unknowingly bought the stolen product should turn around and sue the seller!
It's bad enough that the business will now need to plunk down more money to purchase a replacement for that product. Wouldn't it be wiser for the original owner to contact that business that got ripped off and work out some deal to use it legitimately?
too bad common sense is so easily lost in the breeze nowadays...
Score: 0
|Let's see.
So some fool steals your car and then sells it toanother respectable upright legitimate person who only wants a car and who thinks he is getting a deal by dealing with anything but a reputable dealer with a history...
So, you locate your truck that you paid for in the possession of this guy...
And now, since this guy paid the crook money, You should be refused recovery of Your truck. And You should have to go buy another. Or, maybe the original owner could negotiate an arrangement where he could borrow it occasionally...
Yup, you sure got the insanity of the situation pegged alright!
Apparently a breeze was blowing when you examined the issue.
Score: -12
|@foxxy:
Hell, I'm still wondering where all these twits are getting their "drool-to-text" interfaces... ;-)
Score: -12
|;-))
...and who will be suing whom over the implementation of said UI technology...
...and I just want to see them prove that they had an original 'thought'...
;-))
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|double post
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|> So some fool steals your car and then sells it...
In case when there is something of value to recover (physical object like a car) you certainly have a point. But in the case discussed here there is nothing of value to recover. There might be "loss of potential income", but wouldn't you agree that it is at least debatable whether such damages should be successfully claimed against someone who did the reasonable due diligence and to the best of his knowledge did not participate in any violations?
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|hey Pc..How them hangin? they better not be using that technology cause I have the patent on it. Don't plan on taking it to market but waiting to sue when the time is right.
Score: -13
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