Jump on the train!

With each day that passes, new law and precedent arises with which the legal system of our Country has to work with. This is particularly true as technology is continually enhanced as we move further into the world of the internet. Unfortunately, intellectual property (IP) and web based material is not as heavily protected as a traditional business with tangible operations, mainly because it is something our legal system never had to deal with prior to recent history. Although legal protections have come a long way, there is still a great deal of land to cover to affording IP holders the rights they deserve.

Many internet business ventures, both for profit and non-profit, have attempted to maximize their development potential and give users exactly what they want by allowing them to create it through an open-source model. An open source model is one that allows users to actually write the code for the specific program in order to enhance it. By implementing open sourcing into a business model, many challenges are presented; however, there are also many advantages. Anyone can use the coding, nobody owns it, anyone can improve it, it is very complex, but ultimately, it allows for rapid change. This is the concept with which systems such as Wikipedia, Linux, and Mozilla Firefox operate on.

The largest problem and challenge open sourcing poses for a creator is that nobody truly owns it, so who is responsible and can anyone be held liable? It would seem as though users would self-police themselves to avoid malicious content being built into the source and to ensure no one person was abusing the privilege of being allowed access to create and modify programs. Open source also presents the problem of legal protection because no one truly owns the coding so it is extremely difficult to prove copyright infringement or to determine who exactly owns th

e intellectual property rights. It was not until 2008 that the Courts decided whether or not it was possible to infringing on copyrights with open source content, and even still that issue is being debated through the appeals process.

In 2007, Robert Jacobsen brought suit against Matthew Katzer (Kamind Associa

tes, KAM Industries) alleging that Katzer violated the open source license agreement. Jacobsen is the owner of DecoderPro, a company which is a pure play open sourced and provides users with codes to unlock model trains. Katzer created a similar program for commercial purposes; however, he did not include the proper information necessary to comply with the open source license agreement. When this case was first brought to the Courts, Jacobsen was seeking injunctive relief; however, he was denied that remedy. On appeal is when the Court decided that there had been copyright infringement.

In past attempts from different individuals and companies to bring suit for copyright infringement in regards to open source content, courts had found that there was no infringement and often awarded damages based on breach of contract, in most cases being the license agreements. When users of open source programs, or web based programs of any kind, register to use the services being offered, they almost always are prompted to accept a user agreement. Countless people, including myself at times, often just click accept and do not at all read the agreement. Then when a person violates it, they are found to be in breach of contract. The Jacobsen case has the potential to increase the harshness of penalties if a breach is now also considered to be copyright infringement. Only time will tell as the case has been remanded back to the lower courts as Jacobsen is seeking certiorari, or an appeal to the Supreme Court.

The interesting part about this case, regardless of the outcome, is that an open source creator was finally granted access to the legal system under not only breach of contract, but copyright infringement. Although there have been plenty of suits regarding copyright infringement and IP rights in traditional forms of media, there have been none is the world of open source communications. Traditional copyrights vest the owner with four unique rights to their property: reproduction, derivative works, public performance, and distribution as outlined by the 1976 Copyright Act. The operative word that has been so troublesome in open source disputes is “owner” because by definition, open source content has no owner. It is treated as if it is public domain. I think the sticking point that will develop from the Jacobsen case is that the original creator of the open source content will be provided with much greater protection for their original creation of the content. To contradict that, the prevailing argument is that with all the user changes and development of the product or service, it has been materially changed and therefore should not be provided the same protection as traditional media.

By materially changing the product, Katzer violated the Artistic License and user agreement and in turn commercialized the product to reap the financial benefits of the decoding of trains. This of course violates the fair use doctrine through profitable gains for Katzer. The Artistic License is a form of a click wrap license for a pure play business such as the one Jacobsen operates and allows him to dictate exactly what may and may not be done to the original content. When Katzer proceeded to reproduce the content and commercialize it, he did not allow access to the code, therefore making the content no longer open source and violating the license. The artistic license used by Jacobsen read as follows:

The program “allowed the software to be used and modified by the public free of charge provided that the user describe any modifications to the source code and a) make the modified versions freely available; b) use the modified package "only within [the user's own] corporation or organization"; or c) "rename any non-standard executables so the names do not conflict with standard executables, which must also be provided, and provide a separate manual page for each non-standard executable that clearly documents how it differs from the Standard Version." The license also required that the user identify the original authors and include the copyright notices.” Law.com

This is becoming a more and more important concept as open source businesses are now seeing real financial gains from their product as companies like Mozilla and Automatic (parent company to Wordpress.com) incorporate. Creative Commons, a non-profit organization dedicating to protecting IP rights through alternative copyrighting methods will be a crucial tool and resource for companies to use to protect their own interests. With the use of their copyrighting techniques, it will be exponentially easier to prove infringement as opposed to simple breach of contract. For example, the attribution feature they offer would have protected Jacobsen by allowing others to copy and work and derivatives so long as credit was given and the content kept open.

The end result from the Jacobsen case, regardless of the legal outcome, is at the very least a heightened sense of awareness about the problem of protecting ope source rights. There are no teeth to current laws and statutes which may ultimately end in companies rethinking their business models if they cannot be afforded the protections that traditional media holds. There is now more of a need than ever to protect these rights and interests, especially because open source and pure play businesses are recognizing significant financial gains that are in jeopardy of being stripped away.