Open source stands up for its rights

commentary Open source developers need to guard their intellectual property rights if they want to compete with the big boys, says consultant.

commentary Intellectual property rights (IPR) are usually associated with large software or music companies. This impression can easily obscure the critical connection between open source and property rights.

Just because software is given away, it does not mean all property rights are thrown out of the window. In fact IPR is critical to the health of the open source movement.

Many open source developers are ill-equipped to deal with IPR but one who did tackle the issue was Robert Jacobsen, whose case against U.S. company Kamind was recently decided in the U.S. Appeal Court. At stake was software written by Jacobsen to handle the control of model trains. Kamind had incorporated it into its own suite of software and sold it without reference to Jacobsen.

Now you might think, especially in light of arguments put out by software giants and the music industry claiming IPR are all about protecting the rights of creative people, Jacobsen would have a straightforward case for abuse of his rights. But the initial hearing in the District Court thought otherwise. Kamind argued that because Jacobsen gave away the software, he could not enforce his copyright, even though Kamind acknowledged that Jacobsen was the copyright owner. The District Court judge agreed.

A judgement of that kind could easily have had terminal consequences for open source. There is undoubtedly an aspirational and altruistic element to open source but how many developers would continue to create software in a situation where their work could be simply purloined for profit--without so much as an acknowledgement?

Fortunately, Jacobsen had the support of the Creative Commons, a non-profit organization dedicated to exploring new ways of handling intellectual property, and was able to launch a successful appeal. The crux of Jacobsen's appeal relied on the fact that most developers have some kind of economic interest in their work, even though no charge is made for it.

Indeed I know many talented people who put a great deal of work into open source projects while also looking for a way to obtain financial benefit without undermining the open source model. Most often, the economic model open source developers choose is to charge for services, while giving away the software for free. These services may include the development of bespoke software, assistance with implementation or provision of the software as a service.

Even in cases where developers work primarily for their own satisfaction, or to enhance their own reputation, there is an indirect economic angle--and retaining the copyright is still a critical part of the justification for doing the work.

The Appeal Court recognized these arguments and came down in favor of software being protected by copyright even when it is given away. The sale price is not the only possible economic factor, the court found.

The impact of the judgement is more immediate in the context of U.S. law than it would be in the United Kingdom or other similar jurisdictions. A breach of copyright in the United States allows the invocation of statutory damages. These do not require the aggrieved copyright holder to show they have lost specific amounts, so Jacobsen was able to slap a sizable bill on Kamind.

In the United Kingdom it is normally only possible to claim damages for demonstrable losses. Here, Jacobsen would have needed to make a calculation of what he would have received had the breach not occurred, and persuade a Court of his reasoning. It is unlikely the idea of wider economic interests would work well in this context.

The judgement is still important, though. Breach of copyright can have criminal ramifications, and an aggrieved developer can go to the Court for an injunction to stop a breach, which if not honored could result in contempt of court and imprisonment. The arguments that led to the U.S. Appeal Court decision should work in most countries to ensure that open source developers can enforce copyright.

We are left with one major problem, which was discussed in an earlier column: the issue of co-operation among open source developers. Quite apart from whether legal rights can be established, individuals and organizations need significant funds to be able to enforce rights through the courts. Most open source projects cannot afford to do so, which means greater collaboration will be needed to protect the movement from marauders.

Open source is more than free software. It is a movement that relies on a novel way to take advantage of the legal rights that have grown up around copyright. Although the creation of quality software will always be the primary measure of the movement's health, its ability to manage the legal framework is an essential adjunct.

I'd like to thank Andrew Perry of legal.consult pty of Sydney, Australia for interesting discussions during the preparation of the article.

Martin Brampton is founder of Black Sheep Research, an independent consultancy providing research, writing and speaking services on a wide range of business and technology issues. Martin was previously a director at Bloor Research, and has worked with IT as a user and analyst for over 20 years. He is a longtime contributor to ZDNet Asia's sister site Silicon.com and his blog can be found on his Web site.