Saturday, October 4, 2008

An Open Source Legal Breakthrough

Good day for the OpenSource movement : 'An appeals court has erased most of the doubt around Open Source licensing, permanently, in a decision that was extremely favorable toward projects like GNU, Creative Commons, Wikipedia, and Linux.'

Here is the Slashdot story and the original court content can be found at JMRI Defense: Court Papers (

This is only in the US but as they are the most litigious for frivolous reason this should protect most of the open source community :D

What is frightening is that Katzer patented and started sending invoices to Jacobsen for work that Jacobsen did! And it took a whole court procedure to defend Jacobsen...

It should be obvious in this case that Katzer should be condemned for extortion!

However the most pertinent comment in my opinion is the following:

"This was an appeals court decision. The appeals court doesn't decide all those things. The legal issue was whether the license was enforceable under copyright law, or whether it was a "mere covenant," meaning that Jacobsen would get nothing because he was not making money off the software. The lower court had ruled that it was a mere covenant. On appeal, the Federal Circuit vacated that ruling, which means it now goes back to the trial court to apply the "correct" law as announced by the Fed. Cir.

Two takeaway lessons, one for Big Business, and one for developers. For Big Business, you can't infringe on the copyrights of open source developers with impunity. For developers, even if you are doing open source software, REGISTER YOUR COPYRIGHT. If you register your copyright up front, you can get statutory damages and attorney fees if some idiot from Big Business decides to try this kind of stunt. Those damages are almost always more than the "actual" damages you'll get for software that you give away for free (as in beer). If you wait until after somebody infringes before you file your copyright, it's too late. And registering is cheap and easy []. In many cases, you don't even need to get an attorney involved (although if you need a patent or trademark or help with a copyright, I know this really great IP attorney who also posts on Slashdot and is clued in on open source. []

And despite the stuff above that may look like 'advice" to the untrained eye, this post absolutely, positively is NOT legal advice."

Fortunately for OGE we have a dual license and we intent to get payments for the commercial license :)

More depressing is this following comment implying that this "Breakthrough" is very limited in scope.

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