Open source software developers must tread with caution when developing in America, land of the lawsuit. Taking what’s already been created, adding to it, improving upon it, and in turn sharing it with a world wide community is what has allowed open source innovations to become “arguably the single most influential body of software around the world.” But it has also left many open to attacks from those who would claim the process by which they invented a software is theirs and theirs alone.
Open source is everywhere, from mobile phones to medical devices to supercomputers to home appliances, and as such patent lawyers have never been busier. The following are some lawsuits which have certainly made an impact on the open source community.
BusyBox vs Monsoon
in September 2007, and for the first time in U.S. history, the Software Freedom Law Center went to bat for two web developers to enforce an open-source license. Erik Anderson and Rob Landley developed BusyBox, a lightweight set of Unix utilities used in embedded systems. Monsoon Multimedia Inc. develops digital video products, and was using BusyBox without granting users access to the source code. After trying many times to get Monsoon to release the code without success, the SFLC, a non-profit legal organization and defender of open source developers, filed a lawsuit against Monsoon for violating the General Public License (GPL). SFLC and Monsoon reached a settlement, where Monsoon would appoint someone to monitor the licence issues, to publish the BusyBox source code on their website, and cash.
Jacobsen vs. Katzer
Robert Jacobsen, leading member of the Java Model Railroad Interface (JMRI) project, headed the team that created an application called DecoderPro which controls the computer chips to run model trains. Model train lovers and hobbyists can program everything that happens on their model train tracks from their computers. The files making up the app are available for anyone to download, along with the Artistic License and copyright info. Matthew Katzer, owner of commercial model railroad software development and distribution firm, Kamind Associates, was called out for copying and distributing certain DecoderPro files, without complying with the terms of the Artistic License, deleting the copyright notices that originally came with the software. Katzer was also accused of cybersquatting on the domain name decoderpro.com.
At first the District Court found that JMRI’s copyright did not support damages for copyright violation. It was later reversed by the Circuit Court of Appeals, who found the copyright was in fact enforceable. Both parties moved for a “summary judgment” where the court found in favour of Jacobsen in three main points:
1. The source code was entitled to copyright protection
2. There was a monetary value associated with the work performed on the software, therefore monetary damages should be paid.
3. Removing the copyright data from the software violated the Digital Millennium Copyright Act (DMCA).
Realising defeat, Katzer agreed to sign a settlement agreement out of court. In that settlement, Katzer was prohibited from reproducing, modifying or distributing JMRI material, he agreed to pay Jacobsen $100,000, and he also handed over the domain name for decoderpor.com. This landmark case was a huge victory for free and open source/open source software developers, it was the first time decisions of this kind were made in a court of law, the conclusions reached have set the legal precedent, and developers can forever contribute to software projects knowing that their rights will be protected.
FSF vs Cisco
In December 2008, the not-for-profit Free Software Foundation filed a copyright infringement lawsuit against Cisco, the designer and seller of electronics, as well as networking and communications technology and services. The FSF busted Cisco for distributing Linksys products, which violated the licences of programs like GCC, binutils, and the GNU C Library. The FSF holds copyrights for these programs, and as such they should have been made open to users to share or modify the software, and by denying users access to the source codes, Cisco was brought to court. Five months later the two parties settled, Cisco agreed to appoint someone to ensure that all Linksys products are in check with the free software licences, as well as a money donation to the FSF.
Bilski vs Kappos
When Bernard Bilski and Rand Warsaw applied for a patent for their business process of “hedging losses in one segment of the energy industry by making investments in other segments of that industry” they had no idea how close they would come to putting an end to software patents for good. Facing rejection after rejection, Bilski brought made an appeal to the supreme court.
Software developers far and wide crossed their fingers awaiting the outcome of this landmark case. They would ultimately be disappointed.
When the Supreme Court reached their verdict, they used the Microsoft vs AT&T precedent whereby “[a]bstract software code [uninstalled in a machine] is an idea without physical embodiment.” As such Bilski’s business method for hedging risks in commodity trading is considered an abstract investment strategy without physical embodiment, and can therefore not be patented. This was good news for the open source community, but what they were really hoping for was for the Supreme Court to take a stand and put an end to software patents. Sadly they did not. It has been estimated that $11.4 billion a year is wasted on litigation over software patents, “with 55 software patent lawsuits filed every week.”
Oracle vs Google
When Oracle bought Sun Microsystems, it has been alleged there was a “If you buy us you can sue Google” option thrown into the deal. When Sun released its Java technology and made its programming language open to all in 2006, it left most of it free. Most of it. J2ME however- its mobile version of Java- was under licence whereby any commercial closed source development of it was under obligation of payment.
Meanwhile, over in Google town, the search engine giant was heavily using J2ME to develop their Android operating system. They never paid Sun. Oracle was very aware of this when they bought Sun. Knowing they were well within their legal rights, they filed suit against Google for copyright infringement. This is quite a slap to the open source community’s face. Both companies have licenses with the Open Invention Network (OIN) which in theory means there should be a non-aggression agreement between the two. Oh well, so much for that. Now the question is who will open source advocates support in this case? When the hero attacks the enemy, but in doing so goes against all your core beliefs, who do you stand behind? Would the SFLC come to Google’s rescue?