Opinion? What's that?
Published on August 18, 2008 By kryo In Personal Computing

gavel128Having returned from a much needed vacation last week (my first since starting to work for Stardock two years ago), it's time for me to get back on the old soapbox and talk about the latest news on software and law!

It seems that while I was away last week, a ninth circuit court of appeals overturned a previous ruling in the matter of open-source developer Robert Jacobsen versus a company who'd taken parts of his code, stripped all attribution to him, and used it for their own purposes in violation of the terms he released it under.

The previous ruling, made a year ago yesterday, was that the code had already been released to the public and that the company's use of it didn't constitute copyright infringement (dramatically limiting the developer's options to stop them). This new ruling holds that it is indeed infringement to redistribute open source code in violation of the terms it was released under.

I think this serves as an interesting counterpoint to the ruling I posted about a month ago (which is still going strong). In that case, the judge ruled that simply running a legitimately obtained piece of software in violation of the EULA counted as copyright infringement, which I still feel is an abuse of both the letter and intent of copyright law. In this case, the offender really was making copies, and just because the author gave it away for nothing, I think it's entirely sensible that he should still be able to govern its further distribution.

What do you guys think? Is this new ruling fair and sensible, and will the courts ever find the proper balance between the rights of creators and consumers that copyright was meant to provide?

on Aug 18, 2008
With the amount of time and effort that go into such things, I rather like this ruling.
on Aug 18, 2008
The law (judicial decisions) should not constructively interfere with the original intentions of the property owner. Open Source as I understand it is comprised of Copyrighted original works and, owners of such works can stipulate limitations on re-use of their Copyrighted works if they want to.

When I read a license agreement and usually have to click on "I Agree" I have then created a contract with the owner and made myself a party to that license agreement. Sometimes in contract law contract provisions are held to be unenforceable because they conflict with the law and/or regulations issued by governing bodies.

To take someone's Copyrighted works and incorporate them into your own work, without the owner's consent, is a theft, unless such works are clearly in the Public Domain and no longer subject to copyright law. If the above are a fair synopsis of the relevant facts it's hard to see how the first judge could have made such a ruling.

So, how is it the provisions of Robert Jacobsen's license agreement weren't enforceable? Apparently the ninth circuit court of appeals believes his agreement is enforceable. Good for them. Open Source will remain viable and offer competition that will benefit software users for years.
on Aug 18, 2008

If it was open-source released under the 'GNU' Licence then someone somewhere didn't read the terms of that Licence.

Last I looked [ages ago] there's reference to the retention of credits, etc.

Jafo goes check the GNU included with Litestep...

on Aug 18, 2008
As one of the active members of that other thread, I think this new ruling fits perfectly into my reading of the law. Yes, he was making copies, but the license expressedly allwed him to do so, even at a profit. It is only his violation of the license terms that makes the copying illegal.