Bruce Perens: A Big Change for Open Source

Last Updated: September 21, 2021

Jason

Jason

Bruce Perens: A Big Change for Open Source
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A court of appeals has eradicated any doubt around licensing in terms of open sourcing, in a decision that favored Wikipedia, Linux, and Creative Commons.

The man who prompted the change could be considered public enemy number one for a free software project. This article talks about how the community benefited from this enemy.

For a decade, the question had been floating around: can you enforce open source licensing?

Are there terms that call for something of a disclosure of the source code that is legal?

Are there contracts, which require an agreement of parties to stick to the rules?

The ruling that the court made cleared up a lot of confusion around these queries.

The reason why there were so many questions around the concept of open source was simple – there hadn’t been any previous court cases that related to this issue, which means that nobody could predict for certain which way a judge would rule.

The few cases that were brought before a judge never reached a verdict, because the opposing parties were able to settle their dispute and keep everything confidential.

The one case that was highly publicized was SCO’s pursuit of IBM and Linux, and it established where Linux originated from, but it didn’t cover free software licensing. This means that everyone had to wait a decade for the lawsuit that would establish this.

IBM and Linux

The opponents are Bob Jacobsen, a man who built computer software that controlled model trains. He gave his software to the world to be used for free, and never expected to make anything from it. He only asked that people shared it.

In comes Matthew Katzer, who owns a company that sells model train software, who has filed numerous patents over the years in an attempt to cover all software related to model trains. Katzer is no stranger to bringing lawsuits forward against model train enthusiasts.

These enthusiasts contend that the software doesn’t belong to him, and has actually been floating around since the 1960s.

The lawsuit alleges that Katzer filed for patents on attributes already associated with Jacobsen’s software.

The strange thing about U.S. patent law is that applicants are allowed to claim that they came up with something long before they actually file a patent for it, which means that Katzer claimed to have come up with the software back in 1998, despite filing for it in 2002.

Once the patent had been granted, Katzer began billing Jacobsen, asking for hundreds of thousands of dollars or he could face a suit. Jacobsen didn’t take it lying down, instead, he turned the suit back on Katzer, asking the court to determine that Katzer suit wasn’t valid.

Because Katzer used Jacobsen’s software in his product, he bound himself to the conditions of the open-source license, which meant that he couldn’t apply his patents to the software.

This is one of the biggest reasons why free software developers cover themselves with licenses. Their work might be given away for free, but they can go to court over the license.

Jacobsen alleged that Katzer was copyrighting his software because he wasn’t adhering to the license conditions. Of course, Katzer defended himself, asserting that the terms of the license weren’t valid. The judge took Katzer’s side.

This cast a shadow over licensing around free software, which brought into question whether the licensing could actually be enforced. If the terms of Jacobsen’s software weren’t valid, then what about Creative Commons and Wikipedia?

The judge’s decision was appealed.

The court of appeals found that the free software license was a license, not a contract, which means that both parties don’t have to agree to it for it to be binding, and its terms can be enforced, which means that if you violate those terms, you are infringing on copyright.

This meant that Jacobsen now had a pretty good chance of winning against Katzer.

Now that a relatively high court in America has made this finding, developers of open source are confident that they aren’t limited to legal penalties against people who violate their contracts, but they can pursue suits against copyright violators.

The goal of open source software is to share, not make money from it, but sadly the current system still makes it too easy for people like Katzer to come after open-source software with a lot of money.

At least this case does set somewhat of a precedence that will hopefully continue to move in the right direction for open source.

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Written by Jason

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