Free and Proprietary Software Groups Applaud Copyright Decision

Last Updated Aug 15, 2008 6:09 PM EDT

Free software licenseA court ruling on the Jacobsen v. Katzer case this Wednesday had many declaring it a "win" for open source software. I spoke to a few lawyers about the Court of Appeals for the Federal Circuit (CAFC) decision for a better understanding of what happened and how it affects software vendors of all stripes, whether in the free or fee camps. Participating were Neil MacBride, vice president of anti-piracy and general council of the Business Software Alliance; James Vasile, legal counsel for the Software Freedom Law Center; and Jeffrey Neuburger, partner and co-chair of the technology, media and communications practice at law firm Proskauer Rose. I've pulled quotes together in a "round table" for convenience.

If you aren't familiar with the case, here's a quick summary (and otherwise just skip this paragraph): Robert Jacobsen manages an open source software group that had code allowing model train buffs to use their computers to program chips that control model trains. The software was available for free download and use under an artistic license, which required proper attribution and credit. Matthew Katzer and his company, Kamind Associates, Inc. , has a competing product for which he charges. Jacobsen accused Katzer of incorporating some of the open source code without following the terms of the license and sued for copyright infringement and looked for an injunction. The District Court said that the license was so intentionally broad in its grant of rights that there could be no copyright infringement, even if Katzer failed to honor all the terms of the license. The CAFC overturned that decision, re-opening the door for Jacobsen to continue seeking an injunction.

BNET: What was the basic concern of Jacobsen? James Vasile: One of the ways people have attacked free software licenses is by saying that the licenses are contracts, so if you violate the licenses by not meeting the conditions, you can still distribute your software.

Neil MacBride: Reading the appellate treatment of the district court's opinion, the district court seemed hung up on the notion that if it's open source, it can't be subject to copyright. If you are giving it away for free, how can you expect to control the distribution?

Jeffrey Neuburger: If the decision went the other way and the licensor had to use a contract claim, it might have been difficult for them to show a traditional contract remedy. How do you show the breach of the damage? There certainly are damages, but here the real objective of the plaintiff was to be able to bring copyright action to get an injunction. A lot of people have hoped that injunctive relief was readily available. In a breach of contract claim, it's harder to get that.

BNET: If there isn't money being asked, why was it so important for Jacobsen and his open source group to sue? JV: There are plenty of people who would like to free ride on the free software community. They'd like to take advantage of the large body of software that's out there, without actually giving back, which is the basic covenant of the software. The philosophy behind copyleft [which is the movement to use copyright to protect free distribution of copyrighted works] is that we use the tools that are out there, the strong copyright system, to ensure that the software stays free. We're not talking about freedom from monetary price. You absolutely can charge for free software. We're talking about the freedom to copy it and make it better. It's true that people they distribute to can turn around and give it to their friends, but that doesn't necessarily prevent sales of software. There's support for software, advertising around software, consulting.

BNET: What's the bigger picture? JN: In the open source area, it's particularly relevant [but the] principle of the decision would certainly apply to any sort of license agreement.

BNET: It seems ironic to see the free and commercial software forces on the same side. NB: [The ruling] certainly underscores as a conceptual matter that developers, inventors, folks who develop IP, retain the ability to control its distribution. The court is essentially saying even if there is not an obviously economic benefit on its face, for the purposed of the copyright law, the rights holder retains the same absolute software rights as a commercial developer.

JV: We use copyright protection to require freedom and they use copyright protection to require money, but we both really like the copyright protection.

Free software license courtesy Erik Sherman, all rights reserved.

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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.