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Re: Open Source Software: Your Company's Legal Risks
Posted by: Michael P. Bennett and Katherine K. Ivers 2008-09-04 08:09:05
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On Aug. 13, 2008, the Court of Appeals for the Federal Circuit issued a decision in the much-watched case Jacobsen v. Katzer, No. 2008-1001, which turned on whether violating an open source licensing agreement should be considered copyright infringement. It is important for companies to be aware of the implications of this decision and to respond accordingly; this applies to companies that use open source software -- even those who think they don't.
Nothing new.. just FUD
Posted by: cmartinez4u 2008-09-05 06:28:37 In reply to: Michael P. Bennett and Katherine K. Ivers
It does not apply to companies/developers that use open source software.
It applies to companies/developers who obtain/add/modify open source software and re-distribute/sell without contributing the code added/modified back to the community or asking permission from the copyright holder.
so how many companies re-distribute/sell? not even 2% of companies who use open source software.
Proprietary Software?
You can not even look at it...so forget about it.
It applies to companies/developers who obtain/add/modify open source software and re-distribute/sell without contributing the code added/modified back to the community or asking permission from the copyright holder.
so how many companies re-distribute/sell? not even 2% of companies who use open source software.
Proprietary Software?
You can not even look at it...so forget about it.
cmartinez: you labeled your post as FUD (fear, uncertainty, doubt). I think that misses the point. The Jacobsen court was the first appellate court in the US to rule on substantive issues related to an open source license. That by itself makes the decision important and worthy of discussion. And it was the Court of Appeal for the Federal Circuit, one of the most influential courts for intellectual property issues. All the more reason to take note of the decision.
This should already be normal business practice
Posted by: seanlynch 2008-09-04 10:06:08 In reply to: Michael P. Bennett and Katherine K. Ivers
The situation you are describing is hardly unique to companies that might use and re-distribute open source software. This should already be normal business practice for just about every company in existense.
You can pretty much sum up your article by saying:
"If you want to re-distribute any copyrighted material you must follow the license of the copyright holder."
For some reason many people think open source software is somehow odd or different when you are talking about copyrights. its probably more accurate to think of closed source software as the oddity when thinking about copyrighted material.
For centuries all copyrighted material has been 'open source', although that term was not used. There was almost no difference between the copyrighted material and its delivered form. Stories, Newspaper articles, movies, music and pictures are all forms of copyrighted materials. When you read a book by Stephen King, you actually get your hands on a copy of his 'source code'. You don't just get to read the synopsis on the back cover. You get the entire story.
If you try to re-distribute Mr. King's copyrighted work without the permission of the copyright holder, you will be in violation of copyright law.
The same holds true for music, movies and all other copyrighted works.
This is actually the purpose of the copyright. To protect the ownership of materials that are distributed publicly. There is the public domain, the copyrighted domain, and the secret domain.
Secret? Yes, as in trade secrets. Another way of protecting the ownership of material is to never publish the 'source'. A great example for trade secrets is the formula for Coca-Cola or the Colonel's 11 secret Herbs and spices. There are also algorithms used in business that are maintained as trade secrets, like Google's search algorithms.
Historically trade secrets were not copyrighted because they were not published and disseminated. It was up to the secret holder to keep the secret. AT&T inadvertently placed almost all of ancient Unix code in the public domain by failing to keep it secret and distributing it widely without copyright notice (pre- Berne convention).
Open source is like most copyrighted material that the corporate world is familiar with. Corporations know that they cannot use a Celene Dion song in an add campaign without the permission of the copyright holder. It does not matter if the CEO can hear the song in public every time they board an elevator, or that any musician familiar with the art could transcribe the notes for the song.
It is copyrighted material and they need the copyright holder's permission.
Those of us old enough remember when closed source software was in a kind of legal limbo. At one time you actually had to publish things with a copyright notice in order for things to be copyrighted. This changed with the ratification of the Berne convention in the mid 1970's. If we still operated under the old rules, Microsoft would have to publish their source code in order to get it copyrighted.
But now we actually have the weird situation where material that is never disseminated to the public in human readable format is still entitled to the same copyright protections as the more familiar copyrighted materials like books, music, poetry and open source software.
If a company fails to honor the license granted by the copyright holder in their use of that copyright holder's works, they are going to have to call in the lawyers. The fact that the material is 'open source' like a novel, or a poem is incidental.
You can pretty much sum up your article by saying:
"If you want to re-distribute any copyrighted material you must follow the license of the copyright holder."
For some reason many people think open source software is somehow odd or different when you are talking about copyrights. its probably more accurate to think of closed source software as the oddity when thinking about copyrighted material.
For centuries all copyrighted material has been 'open source', although that term was not used. There was almost no difference between the copyrighted material and its delivered form. Stories, Newspaper articles, movies, music and pictures are all forms of copyrighted materials. When you read a book by Stephen King, you actually get your hands on a copy of his 'source code'. You don't just get to read the synopsis on the back cover. You get the entire story.
If you try to re-distribute Mr. King's copyrighted work without the permission of the copyright holder, you will be in violation of copyright law.
The same holds true for music, movies and all other copyrighted works.
This is actually the purpose of the copyright. To protect the ownership of materials that are distributed publicly. There is the public domain, the copyrighted domain, and the secret domain.
Secret? Yes, as in trade secrets. Another way of protecting the ownership of material is to never publish the 'source'. A great example for trade secrets is the formula for Coca-Cola or the Colonel's 11 secret Herbs and spices. There are also algorithms used in business that are maintained as trade secrets, like Google's search algorithms.
Historically trade secrets were not copyrighted because they were not published and disseminated. It was up to the secret holder to keep the secret. AT&T inadvertently placed almost all of ancient Unix code in the public domain by failing to keep it secret and distributing it widely without copyright notice (pre- Berne convention).
Open source is like most copyrighted material that the corporate world is familiar with. Corporations know that they cannot use a Celene Dion song in an add campaign without the permission of the copyright holder. It does not matter if the CEO can hear the song in public every time they board an elevator, or that any musician familiar with the art could transcribe the notes for the song.
It is copyrighted material and they need the copyright holder's permission.
Those of us old enough remember when closed source software was in a kind of legal limbo. At one time you actually had to publish things with a copyright notice in order for things to be copyrighted. This changed with the ratification of the Berne convention in the mid 1970's. If we still operated under the old rules, Microsoft would have to publish their source code in order to get it copyrighted.
But now we actually have the weird situation where material that is never disseminated to the public in human readable format is still entitled to the same copyright protections as the more familiar copyrighted materials like books, music, poetry and open source software.
If a company fails to honor the license granted by the copyright holder in their use of that copyright holder's works, they are going to have to call in the lawyers. The fact that the material is 'open source' like a novel, or a poem is incidental.
