Thursday, September 27, 2007
Open Source: Paradigm Shift
For some time, I have been referring to the open source business model as a "paradigm shift" in the way software is developed and distributed. I use the term "paradigm shift" reluctantly because it has been so overused. However, I think that it is the best term for this change and I use paradigm shift in its original sense of a fundamental change in the industry. I am delighted to report that I now have confirmation of this view from Gartner's recent report: Gartner declared open-source software "the biggest disruptor the software industry [Gartner] has ever seen and [Gartner] postulated it will eventually result in cheaper software and new business models." They stated that open-source products accounted for a 13 percent share of the $92.7 billion software market in 2006, but should account for 27 percent of the market in 2011 when revenue is expected to be $169.2 billion, according to Gartner research. http://www.eweek.com/article2/0,1895,2186932,00.asp
Thursday, September 20, 2007
The Software Freedom Law Center Files First Enforcement Action for General Public License
On September 20, the Software Freedom Law Center has filed the first lawsuit to enforce the General Public License version 2 in the United States ("GPLv2"). The GPLv2 continues to be the most widely used open source license: more than 65% of the projects on SourceForge use it.
The plaintiffs, Erik Andersen and Rob Landley, sued Monsoon Multimedia, Inc. for copyright infringement of the BusyBox software in the Southern District of New York. The complaint can be found at http://www.softwarefreedom.org/news/2007/sep/20/busybox/complaint.pdf. The plaintiffs allege that Monsoon Multimedia distributed their program as part of their firmware, but did not make the source code available.
This case is very important because it will establish what type of remedies (either contract or copyright) are available to licensors for breach of the GPLv2. The Free Software Foundation has consistantly taken the position that the GPLv2 is a copyright license rather than a contract and that the failure to comply with its terms results in copyright infringement.
I don't agree with the view that the GPLv2 is not a contract (see below for the significance of this distinction), because the GPLv2 includes many provisions such as a disclaimer of warranty which are characteristic of "contracts" for the sale of goods under Article 2 of the Uniform Commercial Code. This distinction could be important as illustrated in the recent decision in Jacobsen (see above) which provided that the remedy for the breach of the Artistic License was in contract (i.e. monetary damages) and not copyright infringement. The major difference in remedies is that contract remedies are generally monetary damages, but copyright remedies are generally injunctive relief (the court orders a party to do something) as well as monetary damages. Clearly, open source licensors would prefer to obtain injunctive relief to require the licensee to comply with the terms of the license.
However, the court's decision on remedies will not turn solely on whether the GPLv2 is a copyright license or a contract: even if the court finds that the GPLv2 is a "contract", it could also find that the breach of the GPLv2 results in copyright infringement (see the Jacobsen case blog for an explanation of this issue). The GPLv2 is very different from the Artistic License so the reasoning in the Jacobsen case may not apply. However, courts are very influenced by the decisions of other courts in new areas which is why the wrong decision in the Jacobsen case is so important.
Stay tuned, this case will be very important for the future of open source software.
The plaintiffs, Erik Andersen and Rob Landley, sued Monsoon Multimedia, Inc. for copyright infringement of the BusyBox software in the Southern District of New York. The complaint can be found at http://www.softwarefreedom.org/news/2007/sep/20/busybox/complaint.pdf. The plaintiffs allege that Monsoon Multimedia distributed their program as part of their firmware, but did not make the source code available.
This case is very important because it will establish what type of remedies (either contract or copyright) are available to licensors for breach of the GPLv2. The Free Software Foundation has consistantly taken the position that the GPLv2 is a copyright license rather than a contract and that the failure to comply with its terms results in copyright infringement.
I don't agree with the view that the GPLv2 is not a contract (see below for the significance of this distinction), because the GPLv2 includes many provisions such as a disclaimer of warranty which are characteristic of "contracts" for the sale of goods under Article 2 of the Uniform Commercial Code. This distinction could be important as illustrated in the recent decision in Jacobsen (see above) which provided that the remedy for the breach of the Artistic License was in contract (i.e. monetary damages) and not copyright infringement. The major difference in remedies is that contract remedies are generally monetary damages, but copyright remedies are generally injunctive relief (the court orders a party to do something) as well as monetary damages. Clearly, open source licensors would prefer to obtain injunctive relief to require the licensee to comply with the terms of the license.
However, the court's decision on remedies will not turn solely on whether the GPLv2 is a copyright license or a contract: even if the court finds that the GPLv2 is a "contract", it could also find that the breach of the GPLv2 results in copyright infringement (see the Jacobsen case blog for an explanation of this issue). The GPLv2 is very different from the Artistic License so the reasoning in the Jacobsen case may not apply. However, courts are very influenced by the decisions of other courts in new areas which is why the wrong decision in the Jacobsen case is so important.
Stay tuned, this case will be very important for the future of open source software.
Friday, August 24, 2007
Open Source Legal Webinar: An Open Source Overview after the Release of General Public License Version 3
I recently did a webinar for Gathering 2.0 on open source legal issues with a particular emphasis on GPLv3. Gathering 2.0 is an interesting website which is building a community for people who manage intangible assets (like patents, copyrights and trademarks) for companies. I have known the founder, Suzanne Harrison, for over 15 years and she has great experience in this area. Since intangible assets have become such a large part of a company's assets it is critical that they be managed just like other assets. IBM has been doing a great job for many years, extracting over $1 billion per year by licensing its patent portfolio. In the interest of transparency, I should note that Gathering 2.0 is a client.
If you are interested in listening to the webinar (and seeing the slides), please follow these instructions:
1. Go to http://www.gathering2.com/
2. To access the slides, you must register and basic membership is free.
Note: The audible-only portion is available without registration ( on the homepage, just click the "Recording" link in the webinar block below and to the right of my picture).
3. Once you register and login, go back to the homepage, click the "Download Slides" link in the webinar block which is the block below and to the right of my picture.
If you are interested in listening to the webinar (and seeing the slides), please follow these instructions:
1. Go to http://www.gathering2.com/
2. To access the slides, you must register and basic membership is free.
Note: The audible-only portion is available without registration ( on the homepage, just click the "Recording" link in the webinar block below and to the right of my picture).
3. Once you register and login, go back to the homepage, click the "Download Slides" link in the webinar block which is the block below and to the right of my picture.
Wednesday, August 22, 2007
New Open Source Legal Decision: Jacobsen & Katzer and How Model Train Software Will Have an Important Effect on Open Source Licensing
One of the frustrations of lawyers serving the open source industry is that they have few cases which interpret open source licenses. As Eben Moglen has pointed out, such cases are few because licensees need the license be in effect to avoid copyright infringement. However, with the increasing use of open source software, many lawyers believe that issues such as the scope of the license are likely to come before courts. The first example of these disputes arose in a decision published on August 17, 2007 in San Francisco regarding the Artistic License. Unfortunately, this case was wrongly decided and if allowed to stand may deprive open source licensors of the ability to get a court order (an injunction) to stop violation of the terms of their license, an important remedy for breach of such licenses.
Although you would expect that the first of these cases would focus on one of the wide range of commercial software being made available under open source licenses and probably deal with the most widely used license, the GPL. You would be wrong. The first case involves model railroad software and the rarely used Artistic License. The facts of the case are complicated, but can be gleaned from the pleadings at
http://jmri.sourceforge.net/k/docket/index.html (the decision is available there too). The plaintiff alleged a number of causes of action, but the most important was the alleged breach of the Artistic License (and copyright infringement for acting beyond the scope of the license) due to the removal of all of the original copyright notices to the original authors and the substitution of Katzen's company's name.
The decision makes two important points: (1) the Artistic License is a contract and (2) the failure to include the copyright notices was not a "restriction" on the scope of the license. The first point is important because the Free Software Foundation and some lawyers have taken the position that open source licenses are not contracts. They have good reasons for wishing to avoid some contract formalities, but this position has complicated discussions about the enforceability and remedies for open source licenses. This decision does not settle the issue for the GPL because it does not apply to the GPL and it is only a District Court decision, (lawyers really prefer to have an appellate decision, such as from the Ninth Circuit or the Supreme Court) but it does suggest how courts would approach the issue.
The second point is very important because it deals with remedies. Generally, the remedy for contract violations under US law is damages, not "injunctive relief" (which means that the court order a party to cease their violation). On the other hand, copyright infringement generally includes a presumption that injunctive relief is appropriate. Thus, the question of whether the violation of a license is a contract violiation or copyright infringement (it can be both) is very important, because licensors would prefer to obtain an injunction prohibiting the breach of the license. The question turns on a nuanced legal issue of whether the term in the license is a "restriction on the scope" of the license or a covenant. In the first case, the failure to comply with the provision means that the licensee is outside the scope of the license and thus is a copyright infringer (as well as liable for breach of the contract). On the other hand, if the term is merely a covenant, then the failure to comply with it is a breach of contract. The most celebrated case dealing with this issue involved the Java license between Sun and Microsoft in which the court found that the obligation on Microsoft to meet the Java compatability tests was a covenant, not a restriction on the scope of the license and the court denied Sun an injunction on those grounds (Sun got an injunction for unfair competition).
However, in this case, the court found that the condition to include a proper notice was not a restriction on the scope of the license and, thus, Katzen was not liable for copyright infringement. The court then denied the injunction. The court did not provide an analysis of why it reached this conclusion. I believe that this decision is simply wrong. The use of the term "condition" in the Artistic License should mean that the terms imposed are restrictions on the scope of the license. In fact, the judge in the Sun case even noted that restrictions are provisions which use language such as "subject to" or "conditional". This decision, if upheld, will remove an important (and expected) remedy from open source licensors. Just to be clear, the decision at present deals only with the Artistic License and the provisions dealing with this issue in other licenses may be interpreted differently. However, the decision is unfortunate and I recommend that the open source community support Jacobsen in having this decision reconsidered. Thanks to Roberta Cairney for bringing this decision to my attention; she has been in the forefront of many important copyright issues.
Although you would expect that the first of these cases would focus on one of the wide range of commercial software being made available under open source licenses and probably deal with the most widely used license, the GPL. You would be wrong. The first case involves model railroad software and the rarely used Artistic License. The facts of the case are complicated, but can be gleaned from the pleadings at
http://jmri.sourceforge.net/k/docket/index.html (the decision is available there too). The plaintiff alleged a number of causes of action, but the most important was the alleged breach of the Artistic License (and copyright infringement for acting beyond the scope of the license) due to the removal of all of the original copyright notices to the original authors and the substitution of Katzen's company's name.
The decision makes two important points: (1) the Artistic License is a contract and (2) the failure to include the copyright notices was not a "restriction" on the scope of the license. The first point is important because the Free Software Foundation and some lawyers have taken the position that open source licenses are not contracts. They have good reasons for wishing to avoid some contract formalities, but this position has complicated discussions about the enforceability and remedies for open source licenses. This decision does not settle the issue for the GPL because it does not apply to the GPL and it is only a District Court decision, (lawyers really prefer to have an appellate decision, such as from the Ninth Circuit or the Supreme Court) but it does suggest how courts would approach the issue.
The second point is very important because it deals with remedies. Generally, the remedy for contract violations under US law is damages, not "injunctive relief" (which means that the court order a party to cease their violation). On the other hand, copyright infringement generally includes a presumption that injunctive relief is appropriate. Thus, the question of whether the violation of a license is a contract violiation or copyright infringement (it can be both) is very important, because licensors would prefer to obtain an injunction prohibiting the breach of the license. The question turns on a nuanced legal issue of whether the term in the license is a "restriction on the scope" of the license or a covenant. In the first case, the failure to comply with the provision means that the licensee is outside the scope of the license and thus is a copyright infringer (as well as liable for breach of the contract). On the other hand, if the term is merely a covenant, then the failure to comply with it is a breach of contract. The most celebrated case dealing with this issue involved the Java license between Sun and Microsoft in which the court found that the obligation on Microsoft to meet the Java compatability tests was a covenant, not a restriction on the scope of the license and the court denied Sun an injunction on those grounds (Sun got an injunction for unfair competition).
However, in this case, the court found that the condition to include a proper notice was not a restriction on the scope of the license and, thus, Katzen was not liable for copyright infringement. The court then denied the injunction. The court did not provide an analysis of why it reached this conclusion. I believe that this decision is simply wrong. The use of the term "condition" in the Artistic License should mean that the terms imposed are restrictions on the scope of the license. In fact, the judge in the Sun case even noted that restrictions are provisions which use language such as "subject to" or "conditional". This decision, if upheld, will remove an important (and expected) remedy from open source licensors. Just to be clear, the decision at present deals only with the Artistic License and the provisions dealing with this issue in other licenses may be interpreted differently. However, the decision is unfortunate and I recommend that the open source community support Jacobsen in having this decision reconsidered. Thanks to Roberta Cairney for bringing this decision to my attention; she has been in the forefront of many important copyright issues.
Thursday, July 26, 2007
New Open Source License: Common Public Attribution License
I am proud to announce that the Socialtext Common Public Attribution License was approved by the OSI board on Wednesday morning. It will be the only OSI approved license that includes a provision enabling attribution and "filling" the ASP hole. The license is designed as a template for use by other companies and Socialtext and I believe that this license will fill an important need for open source companies.
The attribution provision was quite controversial and the license went through many drafts in order to satisfy those concerns. Many open source application companies have felt the need for an attribution notice: more than fifteen have adopted the MPL + attribution first used by SugarCRM, so the approval of this license is quite important to them. The participants on License Discuss at OSI were very opposed to the initial proposal on attribution. However, we and Socialtext worked with the members of License Discuss, the OSI Board as well as other members of the community to modify the provisions to meet these concerns. The real hero of the story is Ross Mayfield, CEO of Socialtext, whose patience and persistence during the eight month process were critical to its success. http://www.socialtext.com/node/267.
The license is based on the Mozilla Public License Version 1.1 but Sections 14 and 15 have been added to provide for limited attribution for the Original Developer and cover use of software over a computer network. The attribution provision in Section 14 permits an attribution notice with the following information: copyright notice, short phrase (10 words), graphic image and URL. The network use provision in Section 15 is based on the "external deployment" approach (rather than the Affero approach) and requires that a company that makes the software available over a network (such as providing service as an ASP) provide the source code to persons who use such application over the network.
I realize that I may be biased, but I encourage companies to consider using the CPAL.
The attribution provision was quite controversial and the license went through many drafts in order to satisfy those concerns. Many open source application companies have felt the need for an attribution notice: more than fifteen have adopted the MPL + attribution first used by SugarCRM, so the approval of this license is quite important to them. The participants on License Discuss at OSI were very opposed to the initial proposal on attribution. However, we and Socialtext worked with the members of License Discuss, the OSI Board as well as other members of the community to modify the provisions to meet these concerns. The real hero of the story is Ross Mayfield, CEO of Socialtext, whose patience and persistence during the eight month process were critical to its success. http://www.socialtext.com/node/267.
The license is based on the Mozilla Public License Version 1.1 but Sections 14 and 15 have been added to provide for limited attribution for the Original Developer and cover use of software over a computer network. The attribution provision in Section 14 permits an attribution notice with the following information: copyright notice, short phrase (10 words), graphic image and URL. The network use provision in Section 15 is based on the "external deployment" approach (rather than the Affero approach) and requires that a company that makes the software available over a network (such as providing service as an ASP) provide the source code to persons who use such application over the network.
I realize that I may be biased, but I encourage companies to consider using the CPAL.
Open Source: Japan
If I ever had any doubts about the international interest in Open Source, they were laid to rest last week. I was visiting clients in Tokyo (missed the typhoon, but was there for the earthquakes) and asked a friend if the Licensing Executive Society of Japan would be interested in a presentation on the new General Public License Version 3. Even though they only had a week's advance notice, they had 30 lawyers show up for the two hour presentation. Given lawyer's hectic schedules, such a turn out on such short notice indicates a strong interest. We had a wide variety of participants ranging from inhouse counsel at major companies to private lawyers to law professors. It was a very interesting and enlightening experience.
Sunday, July 8, 2007
Adoption of General Public License Version 3: Keeping Track
One of the major questions in the open source community is whether projects will adopt the General Public License Version 3. Although I have stated in my previous post that the GPLv3 has significant advantages over GPLv2, inertia is tough to overcome. We have no prior history on this question because, in the past, projects did not have a choice between different versions of the General Public License. One challenge in answering this question is tracking these conversions because the information is very dispersed. Fortunately, Palamida, the software management firm, is now tracking these conversions on their website: http://gpl3.palamida.com/.
They count 116 conversions in the first week after the release of GPLv3. However, because this first week included July 4th, it may not be representative. Thanks to Palamida for making it easier to track these changes.
They count 116 conversions in the first week after the release of GPLv3. However, because this first week included July 4th, it may not be representative. Thanks to Palamida for making it easier to track these changes.
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