[Jmri-legal-announce] Ruling from January 19 JMRI hearing

[Bob J. <rg...@pa...>]

(This is an update on the JMRI legal case.  You can also find this at
<http://jmri.sourceforge.net/k/updates.html#2007-08-17>,
along with links to individual documents, etc, in case you want to 
forward a link to somebody)

On August 17th, the Court ruled on the motions from the last hearing. 
We're still digesting some of the ruling:

<http://jmri.sourceforge.net/k/docket/158.pdf>

We won on perhaps the most important issue, but lost on several 
others. Perhaps the most striking part was the Court's decision to 
deny our request for a preliminary injunction. You can read the 
reasoning on pages 8 through 11 of the ruling (link above), but the 
conclusion is:

>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.

*) The facts in this case are the strongest imaginable: Katzer 
admitted copying the JMRI files, admitted removing their copyright 
notifications, admitted being aware that JMRI was distributed under 
license, admitted redistribution of the modified version, and 
admitted doing it without attribution. This kind of problem could 
happen to any open source project.

*) 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. The Court's reading of the 
law in this area expressed uncertainty, but in the end decided that 
our "claim properly sounds in contract", and therefore denied the 
preliminary injunction.

*) 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".

*) We are carefully considering an appeal of this decision. As long 
as the Court's logic stands, we can't enforce our copyrights. 
Further, we need to get the strongest possible decision from an 
appeal, because the "uncertain law" will be clarified by that appeal 
and will apply to other cases in the future.  We're going to need 
help to do that, and we're actively looking for that help.


We're still working through the implications of the other parts of 
the decision,  and will post another update when we have information 
we can share.


-- 
Bob Jacobsen; rg...@pa...; AIM, Skype JacobsenRG