Belgian court Enforces CC BY-NC-ND License

A Belgian court (the Tribunal of 1stinstance of Nivelles) has issued and order enforcing the CC BY-NC-ND license.   A musical group posted music under a CC BY-NC-ND on the website www.dogmazic.net (a well-known French open content portal).  A theater adapted the music to create an advertisement.  The advertisement was broadcast on the radio with no attribution.  The music was modified in order to create the advertisement.

The band sued for breach of contract or, in the alternative, copyright infringement.  The court held that even though the use of the music benefited a non-profit organisation, it was a commercial use prohibited by the licence.  The theatre argued that it was confused because the main page of the website was licensed under a more permissive licence. The Court observed that, as a professional organization in the cultural sector, the theatre had a duty to understand and abide by licensing conditions, noting also that a good faith mistake is not valid in Belgium as a defense to copyright infringement.

The band claimed damages of 10,380€, but the court decided to grant 4,500€, i.e. 1500€ for each attribute of the license that was violated (attribution, no-commercial use, no derivatives).

The court stated that “the band’s behaviour is somehow paradoxical in that, on the one hand, it promotes a non-commercial ideology, but on the other hand, it claims an indemnity based on a commercial tariff that is much higher than the tariffs of the Belgian Collecting Society SABAM”.

Thanks to Philippe Laurent for the basis this entry.  Any errors in the summary or translation are mine.

Linux Foundation Releases Self-Assessment Checklist

The Linux Foundation has published a “Self-AssessmentChecklist” for businesses using open source software.  The document is available here (but requires entering personal information to initiate the download).  It covers issues such as due diligence review, audits, training, and compliance staffing.  The checklist uses no scoring mechanism; it is meant to spark discussion and candid self-assessment within an organization.  It is intended to be used in conjunction with the Linux Foundation’s training materials described at http://www.linuxfoundation.org/programs/legal/compliance/training-and-education.  The checklist is licensed under the CC by 3.0 license.

Nagios Announces End of Trademark Dispute

Nagios, a maker of open source IT insfrastructure monitoring tools, announced the resolution of an ongoing trademark dispute with German company NETWAYS, based on unauthorized trademark and domain name registration and use.  Ethan Galstad – founder of Nagios – believes that community pressure proved key to Mr. Hein and NETWAYS finally transferring ownership of the trademark domains to Nagios.”  Perhaps the German trademark suit described last week in this blog had something to do with it, too.
A timeline of the violations, created by Nagios, appears here.  According to Nagios, dispute centered on the use of the name “Netways Nagios Konferenz” for a conference promoted by NETWAYS, regisration of the domain names nagiosforge and nagioswiki, and a registration of the Nagios trademark in Germany by NETWAYS.
Although the intersection of open source licensing and trademark use can be complex, this is not a particularly complex case nor is it particular to open source.  The kind of domain name and trademark squatting described in Nagios’ timeline is not uncommon — particularly for international resellers and value-added resellers.  It is also particularly troublesome in countries with first-to-file trademark systems, where it can be difficult to challenge trademark registrations if the distributor files before the developer.  The use of Nagios in a conference name is a more complex matter for a trademark infringement claim than would be, for instance, the use of the name on a product.  Classic trademark infringement turns on passing off one’s products as those of another, which requires the mark to be used in commerce to indicate the source or origin of a product.  But the use of the trademark in a conference name can imply sponsorship by the owner of the mark, which is also an basis for trademark claims in the US.



Mozilla Releases Alpha 3 Version of MPL 2.0

Mozilla has released its third Alpha version the revision of the Mozilla Public License.   The text of the license and commentary is here.  The new draft is shorter, and includes elements for GPL compatibility, refined terms for jurisdiction and venue, and a reservation of rights. 

I’m very happy with the way this is turning out!  But I’ll reserve the big kudos for the final release.

German Case Distinguishes Trademark and Copyright Licensing in GPL

The Duesseldorf court of appeal has opined that the licensing of software under GPL does not grant a trademark license. Here is more information in German.  I will post when I see a translation.  Thanks to Till Jaeger for posting this to the FSF Legal list.  This seems like a completely expected result, but the distinguishing of trademark and copyright licensing under open source licenses is a matter regarding which the courts have not yet caught up with the rules that most attorneys assume to apply: that trademarks and logos included in open source software cannot be used unless that use is consistent with trademark law. 

There is an inherent tension between open source licensing and trademark law — open source licenses grants broad rights to modify software, but trademark law limits one’s ability to market modified software under the trademark of the software licensor, because modified software does not represent the source, origin and quality control of the author.  However, removing trademarks from unmodified products can also be a violation of the law.  I’ve been writing about this topic for a long time, though, so I won’t prattle on.

Coup Results in Fork of Open Office

A group of developers has decided to fork Sun’s (now Oracle’s) stagnated Open Office project. Those involved in the OpenOffice.org project have now formed The Document FoundationThe Register reports, “Oracle, meanwhile, has been humiliatingly invited to re-join the OpenOffice community by applying to the Foundation. It’s also been asked to donate the OpenOffice.org brand that it owns to the community.”  Until Oracle makes the decision whether to relinquish its rights to the name, the code base stewarded by the Document Foundation will be called LibreOffice.  (The openoffice.org site still points to an Oracle Web page.)  Novell, Red Hat, Canonical, the Open Source Initiative, the Free Software Foundation, Google and various others including the “French Community” have joined the Foundation.

Although, theoretically, any open source project can fork, in practice it is a rare occurrence.  This development shows the increasing disdain of the open source community for Oracle — a company that was once noted for buying open source companies (and thus succeeding to rights in MySQL, Open Solaris, Java, SleepyCat, and InnoDB), and is now noted for anti-open source tactics such as its recent lawsuit against Google.  Oracle’s litigation tactics and perceived failure to properly steward these projects for the benefit of the community has caused at least one commentator to call the company open source public enemy number one — even surpassing Microsoft.  (The article in the prior link BTW is an interesting catalog of past and existing open source forks.)

 

US Customs Case to be Filed Based on GPL Violation

A Linux kernel developer, Matthew Garrett, posted a blog entry threatening a US Customs case based on GPL violations.  His blog describes failed attempts to get the source code for JooJoo Android tablets.  According to his blog, the maker of the tablet, Fusion Garage, has not responded to requests for source code as required by GPL.  The running dispute is also described here

This method of enforcement is sometimes called a “337” action, because it is authorized by Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337).  If the US ITC (US International Trade Commission) finds Section 337 has been violated, it may issue an order directing that infringing goods be excluded from import into the United States.  The order is executed by Customs and Border Protection, which may seize the goods at the border.  TCBP’s border enforcement of copyrights is essentially limited to copyrights that have been registered with the US Library of Congress and also recorded with CBP.

 A circular published by the US government says, “Members of the public may inform CBP of potential intellectual property rights violations via CBP’s on-line trade violation reporting mechanism called e-Allegations. The public may access e-Allegations and additional relevant information at http://www.cbp.gov/xp/cgov/trade/trade_programs/e_allegations/. CBP also maintains an on-line recordation system, Intellectual Property Rights e-Recordation, which allows rights owners to electronically record their trademarks and copyrights with CBP, and facilitates IPR seizures by making IPR recordation information readily available to CBP personnel. CBP’s on-line recordation system is available at https://apps.cbp.gov/e-recordations/.”

This means that while only the owner of the copyright can bring a claim, anyone can report an infringing import.  337 actions have long been used as a tactic to enforce intellectual property rights.  They are generally faster and cheaper than federal litigation, and for this reason are particularly popular with patent plaintiffs.   However, the remedies available are different from those in federal court — for example, a quick emergency exclusion order is more likely, but damages are not available.  In addition,  in a patent action, the complainant must show that the patent is being used in an “existing domestic industry.” 19 U.S.C.  1337(a)(1)(B), (a)(2-3).  This may exclude actions by non-practicing entities (NPEs) or patent “trolls” — but the law is in flux