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Open Source/content Ideology and the Law: A Personal Perspective

Introduction

What do you think will happen when you try to protect your rights in your material under license similar to Gnu Documentation License (GDL)? These days, individuals from the open source community encounter several legal battles on two laws; the copyright law (DeCSS for example) and the trademark (issue with web sites names). I would like to present to you what I believe is the trend in the Courts. I have been involved in three lawsuits on these issues. In spite of my bad experiences, I believe that the situation is changing for the better. I will present my ideas how open source/content community further can improve it.

The legal battles that the open source/content community is involved can be divided into three categories:

  1. usage of information;
  2. abuse of the openness of ``open content material,'' and,
  3. usage of intimidation to drive individuals out of the field.
The first category referred to cases where the “big brothers” using the laws such as the patent law or the copyright law to sever the ability of others to write software/books. An example of such legal action is the legislation surroundings the DMCA. The second category referred to cases either someone add something to existing material and alleged that the whole creation is owned by him/her or didn't applied the terms of the license. For example, the case of mySQL AB v. NuSphere represent a typical dispute in this category. The third category associated with cases where a “big brother” threaten you that it is better that you “leave” the field. The dispute involve the Blizzard.net is a vivid example of such case. Blizzard Entertainment sent a cease and desist letter to bnetd to close the open source emulation of game Diablo etc. As results, the web-site was closed. Another famous case the killustrator name was changed because a letter from adobe.

Many of the cases in the first category are in the spotlight. The cases in the two other categories are, normally, vegetated by individuals or small groups and perhaps aren‘t “considered” important. As the review below demonstrates the trend in the cases which are in the spotlight move toward the open source philosophy. A different situation is encountered in cases which are not in the spot light.

Current situation

Recently, the Federal Court placed an injunction on posting DeCSS code because it violates Digital Millennium Copyright Act, (DMCA), and it looks like open source is on losing side. However, we have to remember that the Judges job is intrinsically conservative (regardless of conservative Judges or liberal Judges). The judges have to base their decision on the past judgments (well, at least in theory).

In science and technology there are who are known as “free-thinkers href="#tthFtNtABI">1“ which make revolutions such as Einstein, E.R.G. Eckert and Stallman etc. In the judicial world, the judges first look at the precedent. They inherently must move across the board and have similar opinions and, thus, must move slowly.

Yet, things are moving towards the legal system for the open source community/philosophy. The number of articles and speeches by legal scholars that deal with open source ideology increases every day. Mr. Richard Stallman and others from the open source community have became frequent invited guests to many legal symposiums. Today, many legal scholars consider and embrace the open source philosophy. This author traces at least six different law schools (and very prominent) that have as part of their curriculum issues dealing with open source. In fact the book “voices from the open source” and the copyleft notice becomes mandatory material in some law schools (see for example, the class 307 "The Internet: Business, Law and Strategy" offered at Harvard discusses open source community ideas). For example, see the syllabus of Professor P. Samuelson from Berkeley and Stanford Law School Dean Kathleen Sullivan classes.

The Berkman Center for Open law site was established and embraces the bazaar model of corporation. The openlaw.org was established by Prof. Lawrence Lessig to utilize web resources to get better drafts. Now, there are several legal organizations promoting the open source ideology. The Electronic Frontier Foundation (EFF) a non-profit organization is very active in the most visible cases which show considerable success. Now, there are efforts to establish another organization headed by Eric Raymond.

Judges are now starting to learn about Open Source Ideology. For example, Judge Saris was surprised by the number of people attending the hearing (around 20 to 30) and to see the interest of many in the case NuSphere/MySQL (reported by Tina Gasperson). Therefore, the Judge was willing to issue an injunction in the case (as oppose to just dismiss the case). The number of pages that Appeal Court wrote about NY DeCSS was extremely large (about 70 pages indicating the importance of publicity even though the loss in the Appeal Court). In Eldred v. Ashcroft case (01-618) the Supreme Court intervened and reduced the number of years of exclusiveness the copyright.

The DMCA is supposedly intended to ensure the copyright of some (mostly Hollywood cooperations). However, DMCA becomes a censorship tool to prevent other from publishing material, see for example the DeCSS code (free speech) or see the arrest of Dmitry Sklyarov (eBook story). The purpose of the Copyright was to promote the useful art. These examples demonstrate how DMCA, at least the way it was written, is flawed and conflicts with other laws. However, recently, a more restricted version of DMCA (SSSCA) legislation was, at the very least, delayed if not completely abounded.

The open source is gaining new Allies even in Washington D.C. Rick Boucher, who represents Virginia's Ninth Congressional District, wrote interesting article “Time to rewrite the DMCA.” In Canada, a public survey did not welcome the Canadian version of “DMCA.”

It isn't that ``liberals'' are the only supporters of the open source ideas. For example, an outspoken conservative Judge Kosinski came to a similar conclusion as open source, material has to be published as “open content.” Mr. Kosinski advocates the idea that no injunction should be issued on copyright publication. Essentially, Kosinski's idea means that the DMCA provision should be abandoned.

A extended discussion on the variations of the open source licenses and their objectives is presented here. Some authors recognized that their writing still needs to grow. For this reason, authors permit others to reproduce derived material without written permission. An example of such License is the license of Linux System Administrator's Guide ver. 0.6 by Lars Wirzenius 1a (thereafter to referred herein as Wirzenius License).

While the permission gives a very liberal usage to others, some rights remain with the author(s). The two main ``rights'' are not be sued for poor writing (no warranty) 2, and second, most importantly, is the right to be known as the creator of that piece of material (article, source code, manual, book etc) and therefore potentially becoming famous. Becoming famous is probably a larger incentive for writing.

What are your rights if someone tries to take your creation and to allege that it is his/her own? This kind of dispute normally is not the spotlight and get different treatment in the Court. In a dispute that was posted recently in the Web, individual posted comments over the another individual announcement of a new version of software (burning CDs) to protest the similarity to his work3. It is interesting to point out that both projects (individuals) are part of open source philosophy. To my knowledge, no legal actions were involved to resolve the dispute. It is also interesting to point out that the alleged4 infringement5 was not to detract from the original creator but to present the alleged infringer as original creator.

The opinion/verdict of a lawsuit in which the infringement was not to achieve gain for the plagiarizer but, and most notably, to detract from the original creator should be obvious. The difference between the “open content” and “close content” dictates that amount of similarity between the infringing material and the infringed material should judged differently. The criterion that applied for “close content” to gage how much the copying/derived material is substantial6 should be changed. The rationale for “close content” is that in some cases the newly created material does not detract from the original and yet gives rise to new idea/writing. This rationale cannot applied to “open content” material. In copying/deriving from “open content” material, the situation is different. With “open content” material, the author wants and allows his/her writing/idea to spread around. Thus, the only thing that is required from the derivative creator is just to mention the name of the original creator. This situation is similar to academic writing.

The purpose of the copyright law is to promote the science and the useful arts therefore it gives incentives to the authors. Removing the incentives defeats the purpose of the copyright act. Thus, removing the minimum of acknowledgment for “open content” remove the incentives to its creation. That is the reason that Stallman insist on calling Gnu/Linux versus just Linux. This principle is the chief reason for the rapid spread of the open source software. Anything less than acknowledgment must be considered as a violation of the Copyright Act. Courts went so far that even copying for research (see American Geophysical Union v. Texaco, 37 F.3d 882 (2d Cir. 1994)) was considered as infringements because of the low fee involved.

Alex Kosinski7, advocates that all materials should be under “open content” license. In his article “What is more fair than the fair use? 8” Mr. Kosinski explains how it is difficult to analysis “fair use9” and how the results can be affected by how the Judge(s) view the parties. In his article, Mr. Kosinski points to a famous case in which an author copied the style of Dr. Seuss to describe the O.J. Simpson double murders case “the cat NOT in the hat” by Alan Kotz and Chris Wrinn. In that case, the parties argued about the similarity. The Judges of the ninth circuit appeal court found that material is infringing. Mr. Kosinski was able to prove that if Dr. Seuss was a drug dealer and a convicted child molester then the result would be different. His suggestion is to allow usage even of restricted “commercial” material should be allowed without permission but with compensation. Be as it may, the fact remains that compensation for usage has to be awarded to any copyright owner (either by acknowledgment or by monetary).

my case

I have written a book on die casting which described why what commonly die casting engineers believe is violating the basic physical principles. I further described how to do the calculations correctly. The book “Fundamental of Die Casting Design” was published under identical license as Wirzenius' license. I published the book on the net for anyone to download and to judge for themselves. My material was plagiarized. The plagiarizers even copied one of my misspelled words. In their defense for the Court, they alleged that my work is a public domain and more importantly that my license; see below book license gives them the right to use my work in any way they want without acknowledging my creation. They deliberately wrote their material so it looks “compatible” with my work. When I filed the complaint, I never expected to receive the treatment I did. I suspected that Courts are biased against Pro Se (a person who represents themselves)10. Just to list a few things that I encountered: the Judges invented facts when writing decisions, the Judges decided on none-existed discovery motion without hearing and, of course, there was no way to defend myself, and threaten me11. The author favorite, the Judges simply applied not existing rules to Pro Se and ignore rules when when dealing with represented party. As a final note to this, the Judge issued a gag order so I cannot publish my own book (Yet, Others can publish my book).

If you believe that a complaint about a Judge can accomplish anything, note that from 67 complaints about Judges in the Eighth circuit court of appeals in one year none of the judges was punished or reprimanded. I simply do not believe that my complaint will see any different results.

Deliberate masquerade of the derivative material as original from “open content,” should be prohibited and should be punished - even if the new creation contains only a few crumbs. The purpose of the copyright law is to give credit to the creator/author hence “to promote the progress of science and useful arts12, ....” . Thus, every single crumb from the original should be credited. Moreover, if the ``crumbs'' are intended to make the impression that the author of the derived material is the original creator then failing to give proper (any credit) is even more despicable.

I believe that my case is the first lawsuit by an individual with “open content” material. I believe that I had no chance to win my case because the Court is simply bias, against Pro Se. Not all “open source” cases are highly visible. Typically, the individuals who put their materials under “open source/content” license do not own ample resources and cannot afford to hire a lawyer. Furthermore, for most cases the financial incentives of these authors are very small; it is difficult to prove losses based on damages to the future reputation of the individual (only statutory damages). Most authors (copyright holders) in the cases that are not in the spotlight will proceed Pro Se in the Court or simply abandoned the case. For example, blizzard.net was abandoned because the financial incentives is very small and the cost of legal battle (hiring a lawyer) is very large.

It is unfortunate that today the Courts are biased against Pro Se litigants. See for example articles in the net (“Bias Against Pro Per Litigants: What It is. How to Stop it.” by Stephen Elias or See, for example, “Eliminate Bias Against People Who Represent Themselves” by Attorney Stephen Elias here, or here). Yet, studies done by the American Judicature Society (AJS) demonstrate that there is increasing trend of Pro Se litigant see here. In fact, AJS encourages Judges to welcome Pro Se litigants. There are several success stories for Pro Se litigants (see here for example). However, the fact that Judges are needed to be encouraged to treat Pro Se litigants reasonably, demonstrated that Pro Se are not treat so. The fact that there are a few success cases shows only that Pro Se litigants can be right and yet be mistreat in the District Court(As these cases failed in the District Court and also in some appeal courts.).

What can be done

While some free information is available on the net, it is all scattered. One can find similar cases to his on the web and even sample briefs. There are Pro Se centers that are supposed to help to Pro Se litigants12. This author has found these centers to be unfriendly and useless in the cases associated with the “open content.” Here what I believe can be done to change the situation for cases related to ``open content'' which will not be in spotlight. I believe that individuals are self-learner and therefore a virtual center with software and samples of briefs, and other information is essential. Clearly, a mailing list or a news group can significantly help.

I would also recommend to openlaw.org to be more accommodating for “not in spotlight” cases. Perhaps, they or other organization can have a bulletin board with people posting and asking for help in legal issue related to open source/content.

Obviously, there are Judges who will invent facts, allege that you claim ``x'' while you claim ``y'', etc when they are writing their opinions, etc. These kind of Judges always will existed in the cases of Pro Se litigant. The solution for these kind of abusive Judges is to publish their names with the complaint attached (perhaps with some documentation), and to allow a Judge to respond to the complaint (to make it fair).

This author would like to put his LATEX macros that he wrote to help others to write briefs. This author found these Macros (styfile) to be very useful to automate many of the standard layout/wording tasks 13. Currently, this author is writing an How-to on “How to deal with abusive Judges and not to fall into legal traps” which will give additional legal information on the procedure and on same aspects of the copyright/trademark law.

Conclusion

While this author finds that the situation in the Court today begrudged to open source ideology (my case, NY DeCSS case and others) it is changing for the visible cases. The main thing is not be desperate. There are things that we can do and should do to improve the situation. Even though the appeal court decision about the DeCSS sound like a bad joke 14, changes are on the way. Just remember that Eldred's fighting was seems as lost case and yet there was a big turn around. These changes, creation of tool for Pro Se litigant associated with “open content,” and all support from respectable legal professionals and changes on the horizon will make open source ideology the main stream.

Footnotes:

1 This terminology was first proposed by my teacher and colleague Dr. Eduard L. Cussler, AIChE president divides scientists into the following categories, free thinker, cathedral builder, and research manager.

1a Please note that the current version of this book (0.7) is GDL.

2 If I will be held accountable for my writing/program, I might not release it to the public.

3 I refrain from mentioning the specific authors for the lack of understanding what was the exact problem.

4 I deliberately use the word alleged because l do not not want to pass a judgment.

5 The term infringement used as referring to copying but and not only in the pure legal meaning.

6 The material is so creative that substantial intellectual work was needed to create it and it is referred to in legal terms as transformative work. Suggested in an article in the Harvard Law Review, by Mr. Pierre N. Leval.

7 The ninth circuit Judge, probably one of the brightest Judge this author saw in the legal system (even though this author does not agree with some of Mr. Kosinski's opinions; like case of enforcing the English language in Arizona).

8 I have found the article on the web but I lost the link.

9 What is allowed to do with copyright material without permission.

10 For a long discussion, see an article by Stephen Elias editor of Nolo one of the largest Legal publishing company, ``Bias against Pro Per Litigants: What it is. How stop it.''

11 US Constitution

12 ASJ does not allow this article to be cited.

13 There is no manual but there are a lot of examples of how to use it.

14 As the joke about the policeman who arrests a man standing on the street because the policeman alleged that because man has the equipment to commit rape the man should be arrested.

The LICENSE of The BOOK ``Fundamental of Die Casting Design''

Permission is granted to make and distribute verbatim copies of this book provided the copyright notice and this permission notice are preserved on all copies.

Permission is granted to process the document source code through TEX or other formatters and print the results, and distribute the printed document, provided the printed document carries a copying permission notice identical to this one, including the references to where the source code can be found and the official home page.

Permission is granted to copy and distribute modified versions of this book under the conditions for verbatim copying, provided that the entire resulting derived work is distributed under the terms of a permission notice identical to this one.

Permission is granted to copy and distribute translations of this book into another language, under the above conditions for modified versions.

The author would appreciate a notification of modifications, translations, and printed versions. Thank you.



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