Despite this being an American ruling it is a very important one.
Open Source software was / is developed as a free alternative to what
many consider to be overpriced & undeveloped commercial software. The
end users of this software can and do affect the development of future
Just because it's offered free companies should not be able to take
the code and use it for commercial gain, it does not belong to them.
Several US rulings have been mimicked in Europe in the past.
As I understand it, the ruling affirmed the creator's right to remedies
when someone violates the terms of the license, whether or not that
license has relinquished certain rights, because that relinquishment
was/is conditional on certain terms stated within the license. It's not
about copyright as such, which inheres in the author unless and until he
relinquishes such right explicitly and without conditions. That is not
the case with the Artistic License, nor the Creative Commons License,
nor with the Gnu License, nor with any other open source license I have
FWIW, copyright in the USA exists from the moment of publication of the
work. Publication includes posting to a newsgroup, BTW, so these
ruminations are copyrighted by me, while the posts I quote are
copyrighted by their respective authors.
Other jurisdictions will I think follow the US lead, if their laws don't
already include that provision.
Open Source doesn't mean free. It just means that someone else can use
or modify the code without payment _within the terms permitting such use
or modification as stated in the license_. Pretty well all open source
licenses I've seen state that commercial use is subject to different
terms (usually to be negotiated with the copyright owner.)
And since this a model railway newsgroup, recall that plans published in
the model press may be used by a modeller for his or own use only.
Commercial use of such plans is subject to negotiation with the
copyright owner (usually the magazine). That's an "open source" license
for use of the plans.
Yes I used the word 'free' as a general expression. Ever 'Freeware'
is not free !
.... and Yes it's use is a bit blurred but that I feel is a result of
how the software is developed and the original concept of Open Source
It is a sad fact that the days of a 'gentleman's' agreement ( and NO I
am not being sexist ) are long since gone and commercialism gets its
greedy claws into everything.
The brave soles who first started to develop Open Source software
should, in hindsight, have set out a stronger legal licence agreement
for it's use but then again that would have defeated the original
If people want commercial software with commercial guarantees and
support ( for what they are worth ) then these people will have to pay
Even Linux has both commercial and Open Source versions.
To me this case is like having a large orchard on common ground and a
few kids come scrump a few fruit, the next day a gang of grocers come
and strip your trees bare to sell the fruit in their shop.
In the JMRI case, the license and copyright were well defined. The problem
was the judgement in an earlier court which had to be overturned. This
appeal overturned that judgement, so the license stands. The other aspect
of the JMRI case revolves around patents, and the barmy US patent law which
allows someone to patent something which was public knowledge. (Its quite
possible to get a patent on something where there is prior art elsewhere if
the US patent office isn't told about that prior art during the granting
process. So patents are granted for things which were invented years and
decades previously elsewhere in the world. Those patents are rarely, if
Back on Open Source, it is quite credible to have Open Source and free
software, yet still make a decent profit out of the software. The profit
comes from configuration, support, assistance, etc.. Not the core product.
Peter Day of BBC Radio 4 did a programme on the subject in the last year, it
is thoroughly recommended listening. It will be on the BBC website, as all
editions of "In Business" are available for years, not just the last week.
Webmaster at http://www.2mm.org.uk/
The NMRA had a problem with a company claiming a patent on DCC. They have
just got to the point in the challenge process where the company concerned
has failed to respond to the challenge
More precisely, the NMRA decided lead an organised challenge of the
patent because if it stood, DCC prices would go through the roof.
Manufacturers helped out with the cash, as it did some individuals IIRC.
The company that claimed the patent appears to be one of many such who
trawl through some technology looking for unpatented stuff, and then
apply for patents. It's a quick and nasty way to hold whole segments of
an industry to ransom. If the wrongfully issued patent is worth
loadsadough, then a challenge will be answered, which can mean years of
wrangling, and lots of cash outlay. As long as the vultures don't get
too greedy, it's cheaper for manufacturers to pay royalties than to
fight. After all, the cost will be passed on to the consumer....
US patent law, which explicitly disregards patents issued in other
countries, encourages such behaviour. It also means that anything
patented elsewhere must be patented in the US, too, which can add
considerably to the development costs of a product.
Another factor in the NMRA case was that the NMRA DCC standards are
based in part on public domain "prior art." Some of it was developed by
Keith Guiterriez, and published in a series of article in Model
Railroader in 1980, IIRC. Keith applied existing art to the problem of
what we now call DCC. His articles even included instructions on how to
program the decoder - in BASIC!
On the contrary, the Free Software world has been using strong legal
licence agreements for decades. It's just that there are people like
Mr Katzer who think that because the software is Free (or Open
Source), they can do what they like and completely disregard the
wishes of the author as set out in the licence.
Typically those people want to treat the Free Software as if they had
written it - burying it in their proprietary product without proper
attribution and without giving users the source code. That's what
Katzer's company were doing with the code they took from JMRI, and
it's completely opposed to the whole point of Free Software.
When this happens, the copyright holder has to sue the wrongdoer to
free up the software. The Free Software / Open Source licences are
almost invariably held to be valid and enforceable. Sueing thus
prevents the code from being distributed in this closed way, and often
(under pressure in the lawsuit) the violating company agrees to
release the source code to their modified version.
In this particular case things are a bit more complicated because a
lower court applied the wrong legal principles and came to the wrong
answer, so an appeal was necessary. But that wasn't really anything
to do with the licence being insufficiently strong.
which has ample examples of successful litigation over violations
of Free and Open Source Software licences. It's not just two-bit
outfits without proper laywers who find they can't violate Free
licences and get away with it. For example, in
we see what is clearly a very expensive settlement being imposed on
one of America's largest ISPs and a large set-top-box manufacturer.
And it's not just in the US. Here's a group going after GPL violators
in Europe, with their list of scalps (including, for example, D-Link,
the prominent computer accessory manufacturer):
Ian Jackson personal email: < email@example.com>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson /
MS have used open-source code in thier products, and done so openly,
but the code they used was under the 3-clause BSD licence, which
allows one to use it in a closed-source program provided you attribute
the BSD-sourced code *in the source code* of the new program. An example
of BSD code in MS products is the TCP stack. MS have never been caught
using code which was under a more restrictive Free licence illegally,
but since most of thier code is closed it would be hard to find evidence.
 The 3-clause BSD licence reads:
* Copyright (c) <year>, <copyright holder>
* All rights reserved.
* Redistribution and use in source and binary forms, with or without
* modification, are permitted provided that the following conditions are
** Redistributions of source code must retain the above copyright
* notice, this list of conditions and the following disclaimer.
* * Redistributions in binary form must reproduce the above copyright
* notice, this list of conditions and the following disclaimer in the
* documentation and/or other materials provided with the distribution.
* * Neither the name of the <organization> nor the
* names of its contributors may be used to endorse or promote products
* derived from this software without specific prior written
* THIS SOFTWARE IS PROVIDED BY <copyright holder> ''AS IS'' AND ANY
* EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
* WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
* DISCLAIMED. IN NO EVENT SHALL <copyright holder> BE LIABLE FOR ANY
* DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
* (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
* LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED
* ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
* (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF
* SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Still not over for JMRI's original dispute see
http://jmri.sourceforge.net/k/updates.html#2008-08-13 August 29th is the
next court appearance. Good progress for them though and great for the
open source movement in general.
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