Copyleft Currents

Novell announced last week that it will be acquired by Attachmate for $2.2 billion.  Novell has been on the auction block for a while and had been entertaining bids by multiple parties, including financial investors and a rumored look by VMWare.  A previous offer share offer was Elliott Management, and investment firm that was one of Novell’s largest shareholders.  The acquisition by Attachmate is a strategic one; Attachmate operates an existing business in the terminal emulation, fraud detection software business.  Here is Novell’s 8K filing on the merger.  Novell announced that it would continue to be the owner of its copyrights to Unix following the merger.  The rights were the subject of a lawsuit with the SCO Group over who owned those rights, which was decided in Novell’s favor earlier in 2010.

Of more interest to the open source world is the fact that Novell will separately sell 882 patents to CPTN Holdings, a technology consortium led by Microsoft and other unnamed members, for $450 million.  Initial speculation was that Microsoft’s consortium might succeed to core Novell SuSe Linux patents, patents associated with Mono (the Novell-led open source runtime for deploying .Net apps on Linux), or Moonlight, the open source runtime for Silverlight apps.  Microsoft has not volunteered details.  Whether the transaction bodes a patent threat to Linux depends on exactly what patents an involved and what they cover.  However, at least one source reports that “A quick look through the U.S. Patent Office database finds 461 patents that listed Novell under the assignee name.” — suggesting that all of Novell’s issued patents were sold, plus many applications in process (which presumably would account for the significant excess). 

However, it may be difficult for a purchaser to use those patents to pursue distributors of Linux.  Novell was a founding member of the Open Invention Network (see here for a statement from Novell motivated by Novell’s last deal with Microsoft), which would have made its patents subject to OIN’s patent policies.   OIN is essentially a patent commons for Linux; members agree to enter into cross-licenses of their patents to cover Linux, as defined broadly by OIN.    OIN’s current license agreement generally provides that any patent licenses survive a change of control — which is to be expected for such a license.  (Novell, however, probably agreed to an earlier version.)

Also, I am curious about the fate of the Novell patent pledge.

 Novell will use its patent portfolio to protect itself against claims made against the Linux kernel or open source programs included in Novell’s offerings, as dictated by the actions of others….In the event of a patent claim against a Novell open source product, Novell would respond using the same measures generally used to defend proprietary software products accused of patent infringement. Among other things, Novell would seek to address the claim by identifying prior art that could invalidate the patent; demonstrating that the product does not infringe the patent; redesigning the product to avoid infringement; or pursuing a license with the patent owner.

Does this pledge now inure to Attachmate, or can Attachmate withdraw it?  Now that the ownership of the patents and company have diverged, are the patents no longer in Novell’s patent portfolio?  The pledge does not call out patent counterclaims specifically, but that is the usual way of using a patent portfolio to defend oneself.  If Attachmate breaches the pledge, is there a remedy?  Can users of SuSe Linux rely on the pledge, even if they did not buy anything from Novell?  Does the pledge encumber the rights of CPTN, as a license would, or does it evaporate with the transfer, as a covenant might?  Inquiring minds want to know.

A study released by OpenLogic examined 450 Google Android and Apple App Store apps and concluded that 88% of Android apps and 41% of Apple iOS apps included open source components.  This was not surprising, but it was more interesting that the study found that there was GPL code in 8% of Apple applications — notwithstanding prior kerfuffles about whether the GPL is incompatible with Apple’s app store terms.  (For the latest regarding LVC video player, see this post.)  The study only examined free apps, rather than apps licensed for a fee.

On November 17 2010, the English High Court ruled in Football Dataco Limited, et al  v Sportradar GmbH et al that the act of making material available to the public by online transmission occurs where the transmission takes place, and not where it is received, for the purposes of copyright.

Plaintiffs alleged copyright infringement of their live streams of data (such as goals scored, goalscorers, penalties, yellow and red cards and substitutions) for soccer matches in a package called “Football Live.”    The defendants were in the business of assembling similar data from public sources. The defendants’ data was stored on web servers in Germany and Austria but could be accessed via links from other locations, including the UK.

Defendants argued that there was no jurisdiction for the English Court because no acts of infringement occurred in the UK.  The Court held that Sportradar had not done any act of reproduction (in respect of copyright) or extraction (in respect of database rights) in the UK.

Database rights are governed by Article 7(2)(b) of the Database Directive:  “Any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies by renting, by on-line or other forms of transmission.”  [emphasis added]  The court stated that the question of where the act of “making available” occurred under this Directive was related to where “making available” occurred for the purpose of s.20 Copyright Designs and Patents Act 1988.  The court analogized to the precedent of where a “broadcast” occurred under the Directive on Satellite Broadcasting and Cable Re-transmission for broadcasts originating within the EU; under that directive, the act of broadcast occurs where the signals are introduced under the control of the person making the broadcast into an uninterrupted chain of communication (which is referred to as “emission theory”).

The court stated, “[T]he act of making available to the public by online transmission is committed …only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception.”

This decision tangentially effects the interpretation of copyleft obligations of open source licenses.  The effect turns on the extent to which copyleft obligations are triggered by “making available” software as opposed to “distribution” of software.  It has long been a source of controversy in open source licensing whether “distribution” in a license like GPLv2 includes “making available” — the former being primarily a US legal concept and the latter common in Europe and the UK.  There is not settled law on whether SAAS use of software constitutes“making available” — though it would usually not constitute distribution in the US.  Those who make code available, but do not distribute it (such as via a SAAS product) have historically had some concerns over whether they could inadvertently trip copyleft obligations if code were accessed in Europe and the UK.  Now, at least in the UK, there seems to be some comfort on the issue.



A Belgian court (the Tribunal of 1^stinstance 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.

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.



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.

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.

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 Foundation.  The 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.)

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.