Protecting the Individual: FOSS License Enforcement

In Open source court ruling impacts debated, what seems to be a cut and dry case of a software patent being applied for 3 days after the release of a software package hit a hiccough:

A recent federal court ruling pertaining to open-source software in model railroads could derail enforcement of open-source licenses altogether, according to Mark Radcliffe, general counsel for the Open Source Initiative.

If allowed to stand, the decision could withhold an important and expected remedy from open-source licensors, that being the ability to get an injunction against license violations, Radcliffe said.

But the case does not necessarily set a precedent for other judges to follow, countered Eben Moglen, founding director of the Software Freedom Law Center.

In the case, the plaintiff, Robert Jacobsen, claimed that the defendant, Matthew Katzer, sought royalties from Jacobsen on software covered by invalid patents obtained on open-source software. The software in this case was from the JMRI (Java Model Railroad Interface) Project, with which Jacobsen is involved. The original complaint is viewable here.

According to court filings by Jacobsen, Katzer filed a patent application tailored to the capabilities of JMRI three days after the release of new JMRI software in 2002.

The plaintiff alleged breach of the obscure Artistic License for open-source software and copyright infringement due to the removal of original copyright notices and substituting the name of Katzen's company, Radcliffe said.

But in a ruling on the case in San Francisco on August 17, Judge Jeffrey S. White denied a motion by the plaintiff seeking a preliminary injunction from infringing copyrighted open-source material. To establish copyright infringement, the plaintiff needs to show ownership of the copyrights and copying by the defendants, the judge said. Defendants, meanwhile, said they voluntarily ceased all potentially infringing activities, according to the judge's ruling.

A few notes here - this is an example of why Peer2Patent is important. It is also an example of how the individual contributor to a Free Software/Open Source project can be affected adversely; reading the original complaint (PDF, 1.6 meg) shows that one of the complainants was accused of patent infringement in front of his employer...

What a mess. I'll wait and see what happens, but I'm very surprised at the stance of the Court on this. The implications for virtual worlds are interesting to consider as well.