Major legal ruling re model railway software...

http://news.bbc.co.uk/1/hi/technology/7561943.stm
(kim)

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Only in the USA though...
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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 upgrades.
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.
Chris
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On Sat, 16 Aug 2008 17:08:55 -0700 (PDT), Dragon Heart

I agree, but the boundary is very blurry.
I have a D-Link networked dual disk drive that I use for automatic backup of both my desktop and laptop. This uses an embedded Linux.

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Christopher A. Lee wrote:

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 read.
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.
HTH
--
wolf k.

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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 software.
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 concept.
If people want commercial software with commercial guarantees and support ( for what they are worth ) then these people will have to pay for it.
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.
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Dragon Heart wrote:

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 ever, withdrawn.).

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.
- Nigel
--
Nigel Cliffe,
Webmaster at http://www.2mm.org.uk/
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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 http://www.nmra.org/national/news/PatentChallengeRelease3-080606.pdf
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Graham Harrison wrote:

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!
HTH
--
wolf k.

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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.
See http://www.softwarefreedom.org/news / 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 http://www.softwarefreedom.org/news/2008/mar/17/busybox-verizon / 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): http://gpl-violations.org /
--
Ian Jackson personal email: < snipped-for-privacy@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson /
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Ian Jackson wrote:

The same way Microsoft does you mean? :o)
(kim)
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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[0]. 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.
[0] 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 met: * * 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 permission. * * 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 SERVICES; * LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND * 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 THIS * SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
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Wolf Kirchmeir wrote:

When I heard a speaker from the US he called it copyleft and his analogy was that you should have all the source code for the software so that you could fix it if went wrong or improve on it.
Chris
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Bit of an update via
The Financial Times
8th September 2008
James Boyle
A creative coup for the trainspotters
http://www.ft.com/cms/s/0/152fd5fe-7db7-11dd-bdbd-000077b07658.html?nclick_check=1
Chris
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http://www.ft.com/cms/s/0/152fd5fe-7db7-11dd-bdbd-000077b07658.html?nclick_check=1
"Want to read more? Register now"
--
Martin S.

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kim wrote:

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.
Chris
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