Law Firm Twisting Open Source License Ruling To Mislead About Open Source Software
from the that's-not-what-it-says-at-all dept
When CAFC ruled last summer about the legality of open source licenses and their connection to copyright in the Jacobsen case, we were a little worried that the ruling appeared to conflict with some other copyright rulings, in a way that could eventually cause problems. However, on the whole, it was a good ruling, putting weight behind the core concept behind open source/Creative Commons-style license, which mostly rely on copyright to backstop what those licenses require. However, a law firm has been running around trying to push the idea that the ruling means using any open source software increases your copyright infringement liability. Of course, that's only true if you don't abide by the terms of the license. In other words, the risks are no different than if you're using proprietary code: if you obey the terms of the license, there's no problem. If you don't, there is. All the ruling really stated was that there could be greater damages to those who don't abide by the license. So, really, the law firm's advice seems to be directed entirely to firms who plan to not live up to the requirements of an open source license. That's hardly an increased liability for those who comply.
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Filed Under: copyright, jacobsen, liability, licenses, open source
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Wait, I thought the ruling was on free, open-source software. What profits?
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Who's the client here? Is there a particular White & Case client that would find it advantageous to characterize Jacobsen this way? It's certainly not apparent to me from the face of the article.
Your childish cynicism makes no sense in this context.
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Seriously, YOU don't see why he might say that?
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Seriously, YOU don't see why he might say that?
I see why Ima Fish would say that: he hates lawyers. I don't see how a reasonable person would say that in this context, however, especially because no one has pointed out WHO the person is that would benefit from a lawyer characterizing the decision in this way. And trust me, if the article really is off-base, there's little reason to believe that it would help one of W&C's cases in the future, as judges are not bound by it, and the article would likely get roundly criticized by fellow lawyers and websites like this one.
Lawyers write articles like this to gain prestige or notoriety, not because their clients tell them to do so. If the article mischaracterizes the Jacobsen decision, then it's not because the lawyer is trying to spread misinformation; it's because the lawyer is just wrong.
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No worries about BSA audits
I know one company that tried to do a good job of tracking licenses (that is a cost in itself). They thought they were good, but they still got a significant charge from BSA. After the audit they went FOSS.
It is funny how the Microsoft TCO studies never figure in things like the cost of tracking licenses, the cost of being audited, and the likely fines that will accrue even if you try to live up to the spirit and letter of the license agreements.
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Re: No worries about BSA audits
My personal feeling is if BSA showed up at my office would be to tell them to go to hell and get a warrant.
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Re: No worries about BSA audits
/be prepared
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This law firm
were they hired by Microsoft ?
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not as bad as you might think
The author of the original piece is merely positing that commercial software developers need to be particularly careful not to include open source in their distros, as the potential for damages is now more clear. In other words, until this recent court decision, no one was totally sure what relief cd be granted in the event of violation of the terms of an open source license. Now, it appears that the possible penalties cd be significant.
It's a cautionary article advising on potential liability for infringing activities, not an alarmist piece advising people not to use FOSS.
best,
ric
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To be fair...
But the same sort of thing could happen with any open source, since some ways of deploying open source can obligate the corporation in unexpected (from a corporate standpoint) and potentially expensive ways
It's a risky enough thing that we have several clients who will not allow open source to be implemented at all, but it's also a problem in less controlled environments where good policies have not be implemented. We've also had several clients who have gone through extensive remediation exercises to make that all open source was properly implemented and obligations were fulfilled.
None of this is particularly anti-open source (and I would be the last one to say this...), but it just points to the fact that ANY company that has any software development needs to have policies around open source usage.
However, if anyone is seriously worried about this, I would note that the court was fully aware that those asserting infringement are more interested in resolution than any monetary compensation. With a particularly intransigent party that will not provide a resolution, monetary damages might be awarded by courts, but that is not the actual goal of the lawsuit.
Note that I am not a lawyer, but I have worked closely on these issues for the past 8 years (with a lot of lawyers...).
Chris.
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Re: To be fair...
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The author of the piece you vilify is merely stating the obvious in light of standard industry practices when it comes to software licensing. In the case of proprietary software, licensing terms have been crafted over the years that are generally well understood and protect downstream users from financial liability in the even an upstream licensee has screwed up. Licensing under open source has been much more casual in such instances, and this case does serve as somewhat of a wake up call for downstream licensees to treat such licenses in a manner more in line with mainstream licensing approaches.
To say the the author is "twisting" the decision is plainly wrong.
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