Dr. Dobb's Journal - November 2008 - (Page 17)

is generally regarded in law as imposing a condition. And the court concluded that Katzer was liable for both copyright infringement and violation of contract, implying that Jacobsen was entitled to both injunctive and monetary damages under copyright law. The fact that no money changes hands in a copyleft license didn’t mean that there were no economic implications of the violation of the license, the court said. And, interestingly, the court cited Lawrence Lessig’s Creative Commons license (creativecommons .org) in its opinion, clearly implying that its decision was not limited to this one license. The CAFC sent the case back to the lower court for resolution under this guidance. The implications of the CAFC’s reversal are pretty significant. This makes it clear that free and open-source software creators can seek statutory damages without having to prove monetary harm, can get an injunction against an infringer, may be able to recover attorney’s fees, and may have other rights as well. All of this would have gone away if the lower court’s decision had been upheld. It’s a big deal. This is not the end of the story. Various people have raised questions regarding the scope of the decision and the jurisdiction of the court. The CAFC typically deals with patent law, not copyright; this is a decision in a U.S. court and not binding on other countries; the decision hinges on the language of the license and might not apply to all copyleft licenses; etc. Any speculation here falls under the heading of opinions about opinions not yet rendered, but basically, in the view of Lawrence Lessig and others who have been following the case closely, this decision is likely to set the precedent for other courts and cases and jurisdictions. As for the fact that the decision hinges on the specific language of the license, that’s a positive thing for those crafting copyleft licenses. A Federal court has now articulated just what language needs to be in your contract to make it enforcable under copyright law. This is an important decision not just for those who create free and open-source software, of course. It also has implications for anyone on the other end. If you’ve been deliberately remaining ignorant of whether software you use infringes copyleft licenses, this ruling is your wake-up call. Free and open-source software creators can seek statutory damages without having to prove monetary harm Jacobsen works at Lawrence Livermore National Laboratory and is a model train enthusiast. He is the principle developer of the JMRI Project (jmri.sourceforge.net), an open-source project devoted to his Java Model Railroad Interface software. Jacobsen knew he had a problem when he started getting letters from Katzer alleging violation of Katzer’s patent, culminating in a request for something over $200,000. Jacobsen looked at Katzer’s software and decided he’d better strike first. He file a preemptive suit against Katzer, claiming that Katzer’s patent was fraudulently obtained, invalid, and unenforceable; and that in fact Katzer had improperly incorporated part of Jacobsen’s JMRI software in the code for which he claimed a patent. He also charged Katzer with cybersquatting and a few other offenses. And he made an online plea to other developers to help him nail down the prior art to debunk Katzer’s patent. Opensource lawyers and developers jumped on board, helping him make his case. And Jacobsen v Katzer became the test case for the enforceability of copyleft licenses. The Case Behind the Case But why did this case end up in a patent court instead of a copyright court? The reason is that, in a strictly legal sense, a charge of patent infringement was the trigger for the legal actions that led to this case being heard. And curiously, it was Jacobsen who was accused of violating Katzer’s patent, although it was Jacobsen who filed the suit against Katzer. The law is indeed a curious thing. In a sense, nobody really knows what the law is until a case is brought and a judge gets to rule on specific facts. And a case gets brought when some individual chooses to do so, meaning that the detailed facts in a particular case have a lot to do with what elements of the law come to the judge’s attention and therefore how the nuances of interpretation play out. But free and open-source software was waiting for its day in court, and this particular case got it there. Time To Railroad? It is highly appropriate that the software at the center of the underlying case was code for controlling model trains. Because model train control software is, in a way, where FOSS began. As Steven Levy recorded in his 1984 book Hackers, the first true hackers were members of the Tech Model Railroad Club (TMRC) at MIT in the late ’50s, and the first memorable articulation of the principles on which the FOSS movement are based was the Hacker Ethic espoused by the members of TMRC. The model railroaders—specifically, members of the Signals and Power Subcommittee of the TMRC—spent hours on their backs November 2008 l www.ddj.com l Dr. Dobb’s Journal 17 http://creativecommons.org http://creativecommons.org http://jmri.sourceforge.net http://www.ddj.com

Table of Contents Feed for the Digital Edition of Dr. Dobb's Journal - November 2008

Dr. Dobb's Journal - November 2008 Contents Friday Night Fish Fry Alia Vox Developer Diaries Developer's Notebook Saving Open Source Conversations iPhone Building Your Own Web Server Green Telnet What's New In Boost Threads? Testing Service Oriented Architectures Test Case Generation, UML, and Eclipse Unit Testing Web Services C3 Programming The Agile Edge Swaine's Flames Effective Concurrency

Dr. Dobb's Journal - November 2008

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