Law Firm Twisting Open Source License Ruling To Mislead About Open Source Software

from the that's-not-what-it-says-at-all dept

Fri, Apr 17th 2009 9:49am — Mike Masnick

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

16 Comments

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lulz, 17 Apr 2009 @ 10:24am

As an alternative to statutory damages, the Copyright Act permits the copyright owner to claim the actual damages suffered as a result of the infringing conduct, as well as "any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages."

Wait, I thought the ruling was on free, open-source software. What profits?
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Ryan, 17 Apr 2009 @ 10:29am

Re:
Not the profits from the sale of open-source software, any possible profits the infringing party may have obtained while using the open-source software non-compliantly.
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Ima Fish, 17 Apr 2009 @ 10:49am

I find it hard to believe that any law firm would twist a situation to their client's advantage.
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Willton, 17 Apr 2009 @ 11:06am

Re:
I find it hard to believe that any law firm would twist a situation to their client's advantage.

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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Anonymous Coward, 17 Apr 2009 @ 11:07am

Re:
Free software does not always have a price tag of $0.00. In this case, free software refers to "free" as in "free speech," not "free" as in "free beer."
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Anonymous Coward, 17 Apr 2009 @ 11:19am

Re: Re:
What about "free" as in "free Tibet"?
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Anonymous Coward, 17 Apr 2009 @ 11:31am

No worries about BSA audits
One huge liability you get with proprietary software is the possibility (or probability, based on company size) of a BSA audit. The audits can represent a huge expense even before they get to assessing penalties. And they probably will assess penalties if your company is big enough to have multiple offices.

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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ehrichweiss, 17 Apr 2009 @ 1:25pm

Re: Re:
Unfortunately for the world, he's probably spot on. There's no logical reason for an attorney to spread misinformation like this unless they are having their pockets lined by someone who would benefit from this or it helps one of their cases about to be tried in the future.

Seriously, YOU don't see why he might say that?
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teknosapien, 17 Apr 2009 @ 2:03pm

This law firm
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.

were they hired by Microsoft ?
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Cipher-0, 17 Apr 2009 @ 2:42pm

Re: No worries about BSA audits
I've always wondered under what auspices BSA can audit private companies.
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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Willton, 17 Apr 2009 @ 3:40pm

Re: Re: Re:
Unfortunately for the world, he's probably spot on. There's no logical reason for an attorney to spread misinformation like this unless they are having their pockets lined by someone who would benefit from this or it helps one of their cases about to be tried in the future.

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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Ric Shreves, 17 Apr 2009 @ 11:29pm

not as bad as you might think
If you read the original article, you will find that this coverage is a bit of an exaggeration.

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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Chris Maresca, 18 Apr 2009 @ 12:44am

To be fair...
... they are really addressing something which most corporations are hugely (and justly) worried about, which is generically termed 'underwater liability'. It was first a problem with shareware, where someone downloads something that makes the corporation liable for licensing fees (which could be a lot if it becomes widespread).

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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Anonymous Coward, 18 Apr 2009 @ 9:16am

Re: To be fair...
Pretty scary stuff there, but you fail to distinguish tools from implemented code. I think you addressed the issue of implementing open source into your developed code base which is destined for distribution and sale. Your concerns in this regard are valid to an extent. Open source tools however are a diffent story.
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Anonymous Coward, 20 Apr 2009 @ 9:07am

For every "benefit" there is a counterpart "detriment", and the Jacobsen case is but one example. Yes, at last one court has examined an open-source license and declared it enforceable, while at the same time making the point that in some circumstances a cause of action may also lie for copyright infringement.

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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another mike, 21 Apr 2009 @ 12:03pm

Re: No worries about BSA audits
Why would the Boy Scouts of America be auditing your software? Oh, right, not that BSA.

/be prepared
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