[tt] NYT: Ruling Is a Victory for Supporters of Free Software

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Ruling Is a Victory for Supporters of Free Software
http://www.nytimes.com/2008/08/14/technology/14commons.html

By JOHN MARKOFF

SAN FRANCISCO -- A legal dispute involving model railroad hobbyists
has resulted in a major courtroom victory for the free software
movement also known as open-source software.

In a ruling Wednesday, the federal appeals court in Washington said
that just because a software programmer gave his work away did not
mean it could not be protected.

The decision legitimizes the use of commercial contracts for the
distribution of computer software and digital artistic works for the
public good. The court ruling also bolsters the open-source movement
by easing the concerns of large organizations about relying on free
software from hobbyists and hackers who have freely contributed time
and energy without pay.

It also has implications for the Creative Commons license, a
framework for modifying and sharing creative works that was
developed in 2002 by Larry Lessig, a law professor at Stanford.

That license is now used widely by organizations like M.I.T. for
distributing courseware, and Wikipedia, the Web-based encyclopedia.
In March, the rock band Nine Inch Nails released a collection of
musical tracks under a Creative Commons license.

The ambiguity facing open-source licensing has been one of the
hurdles facing the movement, said Joichi Ito, the chief executive of
Creative Commons.

"From a practical business perspective when big companies and their
legal teams look at Creative Commons there are a number of
questions," he said. "It's been one of the things their legal teams
throw at us."

The appeals court decision reverses a San Francisco federal court
ruling over the misappropriation of a software program by a company
that publishes model train hobbyist software.

The free software, or open source, community has quarreled for
several years with Matthew A. Katzer, a Portland, Ore., businessman
who owns Kam Industries. Previously, Mr. Katzer has sued free
software developers for patent infringement and the free software
community has argued that he had failed to disclose earlier
technology, known as prior art, in his patent filings.

A lawyer for Mr. Katzer did not return calls asking for comment.

In March 2006, Robert G. Jacobsen, a physics professor at the
University of California, Berkeley, filed a lawsuit against Mr.
Katzer claiming that his company was distributing a commercial
software program that had taken software code from the Java Model
Railroad Interface project and was redistributing the program
without the credits required as part of the open-source license it
was distributed under.

The decision to appeal the lower court ruling, which said that the
terms of the open-source contract were overly broad, was intensely
debated within the free software movement. Some open-source
advocates had worried that a loss before the appeals court would
have been a disaster for the community, which has grown as an
economic force during the last quarter century.

"I was terrified that we would lose," Mr. Jacobsen said. "But I
thought it was the right thing to do."

There has long been a link between model train hobbyists and the
free software movement. During the 1950s, for example, hobbyists who
worked on the wiring of the Massachusetts Institute of Technology
model railroad club project were informally known as "hackers,"
according to "Hackers: Heroes of the Computer Revolution" by Steven
Levy. The term evolved to include people who developed and
programmed computers and who passionately believed that software
codes should be freely shared.

Mr. Jacobsen said he believed that the court's ruling was
significant for the free software movement because it had thrived
not on monetary gain but on individual credit for contributions.

"We don't charge for this and so all we really get is credit," he
said, adding that anyone is free to use and modify the programming
instructions created by his group as long as they retain the credit
and distribute them with the programmer's instructions.