Open source court ruling impacts debated

A recent federal court ruling pertaining to open source software in model railroads could derail enforcement of open source licences altogether, according to Mark Radcliffe, general counsel for the Open Source Initiative.

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A recent federal court ruling pertaining to open source software in model railroads could derail enforcement of open source licences altogether, according to Mark Radcliffe, general counsel for the Open Source Initiative.

If allowed to stand, the decision could withhold an important and expected remedy from open source licensors, that being the ability to get an injunction against licence violations, Radcliffe said.

But the case does not necessarily set a precedent for other judges to follow, countered Eben Moglen, founding director of the Software Freedom Law Centre.

In the case, the claimant, Robert Jacobsen, claimed that the defendant, Matthew Katzer, sought royalties from Jacobsen on software covered by invalid patents obtained on open-source software. The software in this case was from the Java Model Railroad Interface (JMRI) Project, with which Jacobsen is involved. The original complaint is viewable here.

According to court filings by Jacobsen, Katzer filed a patent application tailored to the capabilities of JMRI three days after the release of new JMRI software in 2002.

The claimant alleged breach of the obscure Artistic Licence for open-source software and copyright infringement due to the removal of original copyright notices and substituting the name of Katzen's company, Radcliffe said.

But in a ruling on the case in San Francisco on 17 August, Judge Jeffrey S. White denied a motion by the claimant seeking a preliminary injunction from infringing copyrighted open-source material.

To establish copyright infringement, the claimant needs to show ownership of the copyrights and copying by the defendants, the judge said. Defendants, meanwhile, said they voluntarily ceased all potentially infringing activities.

"This is one of the first cases about enforcement of any open source licences," Radcliffe said. In his ruling, the judge said the Artistic Licence was a contract and the failure to include copyright notices was not a restriction on the scope of the licence, according to Radcliffe.

Jacobsen sought to have Katzer put copyright notices in his software reflecting that it was open source. "What the court said was that remedy is not available," said Radcliffe.

The remedy for contract violations under US law is damages, not injunctive relief, in which the court would order a party to cease a violation, Radcliffe wrote in his blog.

The case, Radcliffe said, is a blow to the fundamental basis of open source software, he said.

"Most people in open source believe if you violate the licence, you're outside it, Radcliffe said. "What this case indicates is that expectation may be wrong," he said.

Assessing damages for use of open-source software is difficult because the software is given away free, according to Victoria Hall, attorney for the claimant.

"What are the damages for an open-source project? These aren't your typical contract damages," she said.

The case raises questions about the rights of those who release software via open source. "What rights do they have, and how strong are those rights?" Hall asked.

But she and Moglen pointed out that the case does not necessarily set a precedent for future cases.

"It seems to me a not very important ruling," said Moglen, who has not been involved in the case. The Software Freedom Law Centre provides free legal services to those who make and distribute free and open-source software.

"I do believe that the use of a more carefully drafted and more industry-tested licence will probably help courts and other parties to deal with software in a more informed and accurate way," Moglen said.

To avoid the lack of clarity in the Artistic Licence, the JMRI Project will switch to the GNU General Public Licence. "I think the big advantage [of GPL] is the automatic licence revocation that is present in GPL that is not present in Artistic Licence," said Hall.

Jacobsen also plans to appeal the judge's ruling, said Hall.

Katzer defined to comment on the case. His attorneys did not return phone calls from journalists.

The judge set a 14 September date for a case management conference to further deliberate on the matter.

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