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On Sun, 26 Aug 2007 11:39:48 +0100 peter <peter@xxxxxxxxxxxxxxxxxxxx> wrote: > On Sat, 2007-08-25 at 16:44 +0100, Tom Potts wrote: > > http://www.theregister.co.uk/2007/08/24/open_source_railroad/ > > > > So if you break copyright law you dont break copyright law??? No. If you break the Artistic Licence 1.0 you don't break copyright law, you may break contract law. That would appear to be the sum of the ruling so far and, frankly, I expected as much. I still think that this comes down to JMRI choosing the wrong licence in the first place. http://www.gnu.org/licenses/license-list.html#ArtisticLicense http://www.dcglug.org.uk/archive/2006/11/msg00284.html "Anyone new to this case and/or new to the list needs to take heed of these problems. Learn why and how certain licences can make projects open source but not free software - whereas all free software is open source. Read and understand the GPL (use the FAQ) and think about why so many projects have decided to use it - and why some projects have decided to use something else." http://www.gnu.org/licenses/ http://www.gnu.org/licenses/gpl-faq.html "There is a possibility that open source software could be hit hard by this case - the impact on free software is less predictable. What matters is whether the eventual judgement limits itself to the licence in question or whether the judge tries to make some sweeping generalisation that would impact on all sharing of copyrighted work." The judge has not done this in the ruling so far, the ruling is based on the terms within the licence. It is, IMHO, an error to "scale up" this ruling to apply to other copyrighted works under any different licence, including the Artistic Licence v2.0 which is a radically improved licence and qualifies as free software. It is the terms of the v1.0 licence that are judged to be the reason why copyright law is deemed not to apply. > >The condition that the user insert a prominent notice of attribution > >does not limit the scope of the license. Rather, Defendants' alleged > >violation of the conditions of the license may have constituted a > >breach of the nonexclusive license, but does not create liability > >for copyright infringement where it would not otherwise exist. > >Therefore, based on the current record before the Court, the Court > >finds that Plaintiff's claim properly sounds in contract and > >therefore Plaintiff has not met his burden of demonstrating > >likelihood of success on the merit of his copyright claim and is > >therefore not entitled to a presumption of irreparable harm. > > This is very troubling, both for us and for Open Source efforts in > general. Not really. A quick look at groklaw reminds the visitor: "PJ: You will find a number of articles predicting gloom and doom about the model train case. First, it was a ruling on a motion for preliminary injunction only and the judge said his decision was based on the facts then before him. It's early in the case. Second, it's about the Artistic License. It isn't a case about the GPL, the most used FOSS license, much as some would like to paint it that way. And some of you may recall that FSF warned about vagueness in that license when it was first made available, and some changes were later made. But there is a reason why I keep nagging OSI to take their job seriously and not approve licenses lightly.] - The Register" It is also why any success Microsoft may have getting their licence approved by the OSI is just irrelevant. OSI accreditation is irrelevant, OSI themselves are not taking their job seriously so why should anyone else? Let Microsoft (and JMRI) use a licence that is approved under the Debian Free Software Guidelines and/or the FSF and I'll judge that a considerable success. > *) The facts in this case are the strongest imaginable: Simply not true. The facts are totally undermined by the licence. "The facts of the case are as twisted and convoluted as a styrofoam-mountain switchback track, " http://www.theregister.co.uk/2007/08/24/open_source_railroad/ It is the licence that determines how copyright law is applied. > *) The ruling rests on the Court's uncertainty that an Open Source > organization will _ever_ be able to enforce copyright on software > that can be downloaded from the Internet. Unfounded FUD. We criticise others who attack us with FUD, we must not tolerate those who purport to be friendly who also propagate FUD. JMRI should have their project deemed proprietary by the OSI by fault of using a licence that the OSI should remove from their accreditation. I see no justification for the oft-repeated claim that JMRI is open source and the continued use of the term in association with JMRI only weakens the definition of "open source" and the reputation of the OSI. Making a claim to be open source does not mean that the project IS open source - the claim must be backed up by the licence (because copyright law does not permit the freedom to distribute modified source without a licence). When that licence is sufficiently vague to be legally unenforceable, the claim to be open source is invalid. The project itself is left in an indeterminate state because copyright law is applied via an inconsistent licence leading to inevitable disputes that can only be settled within the interpretation of the licence: contract law. In that regard, the ruling appears correct and it is the licence that is at fault for allowing such a ruling to be made. > *) This ruling is particularly troublesome, because the logic it > contains can be used for any project which freely distributes > software using something that can be construed as a "nonexclusive > license". FUD. Nothing in the ruling so far can be applied to anything except the Artistic Licence v1.0 and projects that use it. > *) We are carefully considering an appeal of this decision. IMHO, the JMRI case was lost the moment it started because the licence is fatally flawed and undermines all subsequent actions. If the JMRI case IS lost, it may just be a GOOD thing for open source because it may just force the OSI to get their act together and dump licences like the Artistic Licence v1.0 from their accredited lists, forcing JMRI and others like it to use a logically consistent licence or be classified as using a proprietary licence. (If a licence cannot be deemed either free or open source, it is proprietary by default even if the source code is available in some public form. All copyrighted works are proprietary by default and can only be made free or open source by a valid and logically consistent licence.) If you distribute your code as open source, it is incumbent on YOU to get the licence right - nobody else can do it for you, nobody else can help you if you get it wrong. That is the lesson of JMRI. Sad but true. > As long > as the Court's logic stands, we can't enforce our copyrights. IMHO JMRI chose a licence that never allowed them to fully enforce their copyrights in the first place. The licence is too vague. -- Neil Williams ============= http://www.data-freedom.org/ http://www.nosoftwarepatents.com/ http://www.linux.codehelp.co.uk/
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