D&C GLug - Home Page

[ Date Index ] [ Thread Index ] [ <= Previous by date / thread ] [ Next by date / thread => ]

Re: [LUG] JRMI gravy train


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.



"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."



"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, "

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

Attachment: pgppB9PYVWt1b.pgp
Description: PGP signature

The Mailing List for the Devon & Cornwall LUG
FAQ: http://www.dcglug.org.uk/linux_adm/list-faq.html