Bruce Perens: A Big Change for Open Source

Thursday Oct 2nd 2008 by Bruce Perens
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In a historic first, a recent legal case creates a solid foundation for the protection of open source developers.

About the Author Bruce Perens is the creator of the Open Source Definition, the manifesto of Open Source and the criterion for Open Source software licensing. Perens represented Open Source at the United Nations World Summit on the Information Society, at the request of the United Nations Development Program.


An appeals court has erased most of the doubt around Open Source licensing, permanently, in a decision that was extremely favorable toward projects like GNU, Creative Commons, Wikipedia, and Linux. The man who prompted that decision could be described as the worst enemy a Free Software project could have. This is the story of how our community was able to benefit from that enemy.

For a decade there'd been questions: Are Open Source licenses enforceable at all? Are their terms, calling for a patent detente or disclosure of source code, legal?

Are they contracts, which require agreement by all parties to be valid, or licenses, which are binding even if you don't agree to then? What legal penalties can a Free Software developer employ: only token damages, or much more?

The court's ruling makes the answers to these clear. Did such weighty questions come up in cases involving IBM, Sun, HP, or Red Hat? No, this is the quirky world of Free Software: it was a court case about model trains.

The reason for so many questions about Open Source licenses was simple: there weren't any court cases about them, so nobody could say with any confidence how a judge would rule. The few cases that did start up never reached a verdict, because the parties settled their dispute and kept the details of their agreement secret.

The one high-publicity case we've ever had, SCO's self-destructive pursuit of Linux users and IBM, established the originality of Linux, but didn't concern Free Software licensing. So, we had waited 10 years for the magic lawsuit that would establish the legal solidity of Open Source licensing, and hadn't gotten it.

Enter the two opponents: on the left, Bob Jacobsen: by day on the staff of a government nuclear research lab, by night a model train hobbyist. Jacobsen built what might be the ultimate nerd product: "Java Model Railroad Interface" or "JMRI," computer software for controlling model trains. Jacobsen gave JMRI to the world as Free Software, never expecting to make a cent from the project but only asking to share the software he created with other train hobbyists.

On the right: Matthew Katzer, owner of a company that sells model train software, who has filed patents that essentially cover all use of computers to control model trains. Katzer has brought and later withdrawn a few lawsuits against other model train hobbyists, who in turn allege that the technology Katzer claims to have invented recently is not his, and has actually existed since the 1960's.

Jacobsen alleges that in 2002, Katzer filed for patents on features that were already available in Jacobsen's JMRI, and that Katzer didn't tell the patent office about the "prior art," evidence that other people made the invention before Katzer did. Oddities of U.S. patent law allow applicants to claim that they created an invention long before they file the patent application, and Katzer's 2002 application claims to be the continuation of a 1998 patent application - thus side-stepping the pre-existence of Jacobsen's work. Unfortunately, the U.S. Patent Office does little to verify that people actually made their invention when they say they did, and doesn't do a thorough check for "prior art" either.

Once Katzer's patent was granted, he started sending bills to Jacobsen, asking for $200,000 and threatening to sue. Jacobsen could have waited for the inevitable lawsuit, but felt that turning the tables would work better. He brought suit against Katzer, asking the court to decide that Katzer's patent was not valid.

After he filed the suit, Jacobsen found that Katzer's commercial product copies some of Jacobsen's JMRI (which Katzer has admitted in court, according to the finding of the appeals court) and that's where this story gets even more complicated. By putting Jacobsen's JMRI software in his product, Katzer bound himself to the terms in JMRI's Open Source license, which prohibit Katzer from asserting his patents against the developers of JMRI - Jacobsen and his friends.

This, folks, is one big reason why Free Software developers use licenses. Open Source projects give their work away for free, and their developers can't spend millions in court when someone attacks them with a questionable patent. They especially can't do that while the patent aggressor makes the Open Source project's own work into part of the patent aggressor's commercial products.

Jacobsen amended his case against Katzer to include a claim that Katzer was infringing the copyright on Jacobsen's software by using it in his product without honoring the license terms or giving any attribution that the software was Jacobsen's.

Instead of trying to show that he did not copy Jacobsen's software, Katzer attempted to defend himself by asserting that the terms of Jacobsen's Open Source license were not valid and could not be enforced on Katzer, and that JMRI was essentially in the public domain.

The judge agreed with Katzer. This put a shadow over almost every Free Software license, bringing further into question whether any of them could be enforced. If the terms of JMRI's license weren't valid, what of the Wikipedia, the GNU project, Linux, Creative Commons, the Apache project, etc.? All of their licenses had some similarities to Jacobsen's.

The judge's decision was appealed in the Federal Circuit Court. A large number of Open Source projects and their attorneys, working for free, filed a "friend of the court" brief. What the appeals court found was, essentially, that the Free Software license was a license, rather than a contract, that it does not require that both parties agree before it can be binding, that its terms can be enforced, that if you violate the license you're a copyright infringer, and that violation of an Open Source license causes real economic damage to the copyright holder even though the copyright holder doesn't charge money for his software.

The court's finding actually seems rather enthusiastic about Free Software. I can't blame them - most of the people who come to that court have motivations other than a desire to share their own work for free. And having made their finding, the appeals court sent the case back to the lower court. With Katzer's key defense rejected by the appeals court, Jacobsen now has a pretty good chance of prevailing against him.

Now that a reasonably high court in the U.S. has made such a finding, Open Source developers are sure that they aren't restricted to the legal penalties against people who violate contracts, which are generally just the amount of money lost, but can pursue the far greater penalties against copyright infringers. So, all of the tools that publishers, movie studios, and record companies have managed to win from a too-willing Congress over the past century are suddenly available to the Free Software developer to enforce their licenses.

That doesn't mean that the Open Source developers will form their own MPAA or RIAA and go after college students and the poor. Their motivation is to share.

So, Katzer's quest for money has so far only resulted in making Open Source stronger, while so far gaining Katzer nothing. Thank you, Mr. Katzer, and a more sincere thanks to the many attorneys who helped to win the appeal, and to Jacobsen's attorney, all of whom are providing their services to Jacobsen for free.

A Larger Question

Which brings us to a related question: Why would anyone violate a Free Software license in the first place?

People who just use Open Source in their own operations will have little reason to ever consult the license, unless they're out to sue the Free Software developer, which is a losing proposition in any case.

People who put Open Source in their own products must heed the license, but its terms are not nearly so bad as those that come with proprietary software, nor are the Free Software developers even one percent as litigious as proprietary software companies.

The developers aren't asking for money. They want to protect themselves, as much as possible, from lawsuits, so that they can continue to give away their own software. Sometimes, they are asking for the people who improve their software to share the improvements, just as the original developers shared their own work. But they aren't doing that without limit - for example, the GPL license as it's applied to the Linux kernel doesn't ask for the source code to applications that run on top of Linux.

In my consulting, enforcement, and expert-witness work, I've found that nobody ever violates a Free Software license for a smart reason. Mostly, it happens because engineers and attorneys aren't connecting well in their own companies. I teach classes for management, legal staff, and engineering on how to avoid these problems, and they aren't very long classes.

I've found three ways to combine any proprietary work with GPL and other Free Software, without a need to give away any source code, even when the Free part is under the new and most rigorous GPL3 license. And thus, as far as I can tell, there's never any good technical reason to break the Open Source license, because you can do anything you want without breaking the license. It just takes a working partnership with legal and engineering staff, and a few rules.

But Katzer and SCO are different from most companies, because both seem to have convinced themselves that they have rights to a Free Software project they didn't write, and are owed a great deal of money. Fortunately, both seem to be doing equally poorly in court. Hopefully, their performance is a message to others: taking adversary action against an Open Source project is like boxing with a beehive.

Jacobsen's case against Katzer is ongoing, although this most important appeal is completed. He has not yet convinced the judge that Katzer lied on his patent application, but what if he does? There has been no criminal prosecution of anyone for lying ("perjury") on a patent application since 1974, when the patent office eliminated its enforcement department.

Contrast that to what the defendant in a suit brought by the holder of a bogus patent faces: between $3 and $5 million dollars in legal fees per case. Without the beneficent legal team that came to Jacobsen's aid, winning such a case is so expensive that it's really losing.

The current system of software patents in the United States makes it too easy for the Katzers of the world to come after others for big bucks, even when there is significant doubt regarding the validity of their own patents. The poor defendants have to spend millions just to prove that the patent being pursued against them isn't valid, bankrupting themselves in the process.

The patent holders have little prospect of punishment when they game the system. That's a system with no sign of balance. We need to restore justice to the patent system, and we also need to take a good look at the motivation for software patents, which many economists and others feel do more to hurt innovation than to promote it.

This article only touches on the highlights of this fascinating case. The full court papers are online for you to peruse.

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