SourceForge versus the Export Laws

A news flurry has erupted over SourceForge’s policy denying access to users in nations sanctioned by US export law.  A blog states that The Obama administration insisted that Sourceforge adopt this policy — though the restriction in Sourceforge’s terms of service has already been in place for many years.  Sourceforge, of course, is caught in the cross-fire between US export regulation and the open source definition.  But statements that such a policy contravenes open source licenses are misguided — there are plenty of reasons why the rights granted under open source licenses may not be freely exerciseable: regulatory law, trademark law, patent law to name a few.  Those who are complaining about Sourceforge’s actions are probably unaware of the regulations that apply to software, and that they used to be far more egregious before they were revised in the early 1990s.  But the kerfuffle points up that the regulatory policy of the US is counterintuitive and awkward to apply to software.  It strains belief that any nefarious actor would be truly thwarted by a technical limitation on downloading code to a certain location.
The language of Sourceforge’s terms of use is standard in the on-line content industry, and if you read to the end, in almost every on line terms of service and end user license. 

Bruce Perens on the Busybox Case

Bruce Perens, the original author of BusyBox, commented in his blog about the recent wave of enforcement cases from SFLC.  Perens was the original author of Busybox.  The utility has morphed over the years, and the current authors claim Perens no longer has any copyright interest in it because none of his original code is in the code base — which Perens disputes.  Perens is not party to the recent suits.

This points up a significant legal issue lurking in open source enforcement — the question of whether open source programs are joint works or multiple works of authorship.  Rights in joint works can be enforced only with all the authors’ participation, whereas a quilt of individual works can be enforced by individual authors separately.  This means serious potential problems for a defendant who must settle with a series of claimants rather than a single joint author group. 

Also, even if no original code exists in a modified work, it can still be a derivative work, as every copyright lawyer knows.  (Consider, for instance, a port into another language, or a rewrite using the identical structure, sequence, and organization.)

FSF generally takes the position that GPL covers an entire program as a single copyrightable work — if not, then its position on linking creating a single executable work would fall into question.  But this position may contradict the idea that a program is a combination of multiple works, each of whose author has a separate right of action.   This issue will likely become crucial one day in a GPL suit.

Please see my previous entry for the facts concerning the suits that were filed.

Test your knowledge of open source licensing

For entertainment value only — no wagering!  


1. Rank these licenses in order of their restrictiveness.

□        LGPL

□        CDDL

□        BSD

□        GPL

□        Affero GPL

□        Artistic


2. Which of these licenses has/have explicit patent grants?

□        GPL version 2

□        GPL version 3

□        Artistic

□        Apache 2.0


3. Which of the following Creative Commons licenses is most similar to GPL?

□        Attribution (“By”)

□        Attribution No-Derivs

□        Attribution Sharealike


4. Which of the following is/are a permissive (i.e. not copyleft or “viral”) license?

□        GPL

□        Artistic

□        Apache 2.0

□        Python Software License


5. Which of the following legal issues is least important to open source?

□        Implied patent licenses

□        Bare licenses

□        Abstraction, filtration and comparison test

□        Online contract formation defenses

□        Limits to enforceability of warranty disclaimers

□        Licensee estoppel and the Medimmune case


6. “One of these things is not like the others.”  Which one?








7. Fill in the blank


IBM Public License, ______________, Eclipse Public License


8. Which of the following computer languages allows a programmer to elect static linking?


□        PERL

□        Java

□        C++

□        HTML

□        BASIC


9. Which of the following computer languages are compiled languages?


□        PERL

□        Java

□        C++

□        HTML

□        BASIC


10. Fill in the blanks:


GNU Tools: Linux Kernel

__________: Microsoft Visual BASIC Macro 


Windows GUI: Windows Operating System

____________: Linux kernel


Top Ten Open Source Licensing Events in 2009

Order from District court in Jacobsen v. Katzer, supporting relief for violations of open source licenses.  The first appellate-level open source case in the U.S. proceeded apace in 2009, mostly with legal wins for open source advocates.  While the court declined to grant an injunction, the appellate decision acknowledged the legitimacy of notice requirements and the district court opinion allowed for the potential for actual damages claims.

Oracle announced plans to buy Sun, and by implication MySQL, landing itself in hot water with European antitrust authorities.  The EU expressed concern that the acquisition would create too much consolidation in the database market; Oracle countered publicly that it’s true competitor was Microsoft, not MySQL.

Cisco settled with FSF regarding alleged Linksys GPL violations.  The case was a flare-up of disagreements over a long trail of GPL compliance efforts that were the legacy of Cisco’s acquisition of Linksys.

Artifex sued Palm and others regarding the use of MuPDF.  Artifex had previously sued Diebold regarding GPL violations for different software.

TomTom and Microsoft settled a patent lawsuit relating to FAT file system technology and Linux-based devices. 

The Symbian Foundation launched its initial activities early in the year.  Symbian is a mobile software platform, and the foundation is an ongoing effort to make it available as open source.

Release of the Droid phone, and announcement of a Google/Verizon deal.  Despite a nuisance lawsuit over the Android trademark, the platform continued its growth in adoption and application development.

Microsoft launched the Codeplex Foundation.

SFLC filed more BusyBox cases. The last round of cases in 2008 were all settled quickly and quietly.  The Busybox project makes available lightweight counterparts of the GNU utilities for UNIX, licensed under the GPL.

Firefox turned five years old…and it’s already smarter than all of us.

Jacobsen v. Katzer Order

A new order was filed on December 10, 2009 in the case granting and denying portions of motions for summary judgment by the parties.  I will post a link to the complaint when one is available. 

One interesting item is the court’s statement, ” Although it is undisputed that Plaintiff distributed the copied work on the Internet at no cost, there is also evidence in the record attributing a monetary value for the actual work performed by the contributors to the JMRI product,” and that the record “may establish a monetary damages figure.”

This is a stumbling block to those who have speculated that no actual damages should be available for open source authors bringing claims of infringement, because of the royalty free nature of open source licensing. 

Oracle Makes Commitments about MySQL

To fend off the European Commission’s concerns about the Sun/MySQL acquisition, Oracle has made a public commitment to maintain certain aspects of the MySQL open source business offering.  They include: continuing to make available Storage Engine APIs, a pledge not to assert that third party vendor’s implementations of storage engines must be released under the GPL (“A commercial license will not be required by Oracle from third party storage engine vendors in order to implement the application programming interfaces available as part of MySQL’s Pluggable Storage Engine Architecture.”), and continuing to “enhance MySQL and make subsequent versions of MySQL, including Version 6, available under the GPL.”  Oracle also pledged to increase spending on MySQL research and development.

This is an interesting approach.  It also is an interesting example of public messaging about not reserving the right to make aggressive stands on GPL interpretation or enforcement.