Re: JMRI case -- Implementation of the Federal Circuit's Opinion

[Alexander Terekhov]

ROFL!

http://www.softwarefreedom.org/resources/2009/jacobsen-amicus-brief.html

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Amicus Curiae: Jacobsen v. Katzer
Software Freedom Law Center 

June 15, 2009



Download PDF | Download Postscript 


2009-1352



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United States Court of Appeals for the Federal Circuit



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ROBERT JACOBSEN,

Plaintiff-Appellant,


v.


MATTHEW KATZER and KAMIND ASSOCIATES, INC.
(doing business as KAM Industries),

Defendants-Appellees.



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Appeal from the United States District Court for the
Northern District of California in case No. 06-CV–1905,
Judge Jeffrey S. White



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BRIEF OF AMICUS CURIAE SOFTWARE FREEDOM LAW CENTER
IN SUPPORT OF APPELLANT

Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898
Counsel for Amicus Curiae




CERTIFICATE OF INTEREST 

Counsel for Amicus Curiae certifies the following: 

The full name of every party or amicus represented by me is: Software
Freedom Law Center, Inc. 
The name of the real party in interest (if the party named in the
caption is not the real party in interest) represented by me is: Not
Applicable. 
All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented
by me are: None. 
The names of all law firms and the partners or associates that appeared
for the party or amicus now represented by me in the trial court or
agency or are expected to appear in this court are:
Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898

 
Dated: June 15, 2009 


--------------------------------------------------------------------------------


Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898
Attorney for Amicus Curiae



Table of Contents
CERTIFICATE OF INTEREST 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES 
STATEMENT OF INTEREST OF AMICUS CURIAE 
SUMMARY OF ARGUMENT 
ARGUMENT 
I. DEVELOPERS USE FOSS LICENSES TO PROMOTE FREEDOM 
II. LICENSE VIOLATION HARMS COMMUNITIES OF DEVELOPERS 
III. LICENSE VIOLATION INJURES THE RELATIONSHIP BETWEEN FOSS DEVELOPERS
AND THEIR USERS 
IV. LICENSE VIOLATION HARMS THE PUBLIC INTEREST 
V. THE HARM CAUSED TO FOSS DEVELOPERS BY COPYRIGHT INFRINGEMENT FROM
LICENSE VIOLATION MEETS WINTER’S REQUIREMENT OF IRREPARABLE INJURY 
Conclusion 
CERTIFICATE OF COMPLIANCE 
CERTIFICATE OF SERVICE 


TABLE OF AUTHORITIES 

Cases 

Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir.
1980)............. 7 

Jacobsen v. Katzer, 535 F.3d 1373, 138182 (Fed. Cir. 2008)
................  8 

Wedel v. United States, 2 F.2d 462, 463 (9th Cir.
1924)....................  7 

Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992)
... 5, 7 

Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374
(2008)......... 7 

Other Materials 

The Free Software Foundation, GNU General Public License v2.0 (1991) 3 



STATEMENT OF INTEREST OF AMICUS CURIAE 

This brief amicus curiae is filed on behalf of the Software Freedom Law
Center (“SFLC”) 1. SFLC is a not-for-profit legal services organization
that provides legal representation and other law-related services to
protect and advance Free and Open Source Software (FOSS), defined as
software distributed under terms that give recipients freedom to copy,
modify and redistribute the software. SFLC provides pro bono legal
services to non-profit and individual FOSS developers, all of whom
distribute software under FOSS licenses. SFLC also helps the general
public better understand the legal aspects of FOSS. 

FOSS is a valuable public good, and copyright law should preserve the
incentives, interest, and choices of FOSS developers. Because these
incentives are primarily dependent upon mutual respect for and
enforcement of the communal norms defined in FOSS licenses, damages are
typically an insufficient remedy for infringement of FOSS copyrights.
The availability of injunctive relief is necessary to enforce those
norms as they are embodied in FOSS copyright licenses. The district
court’s reasoning in this case threatens to broadly foreclose injunctive
relief to FOSS developers, stripping them of effective remedy and
dampening their motivation to contribute to the common good. Thus, SFLC
submits this brief to express support of Plaintiff-Appellant’s position
and the reasoning of this Court in the prior appeal. 

This brief is submitted with the consent of the Plaintiff-Appellant.
Consent of Defendant-Appellee was requested, but no response was
received. 



SUMMARY OF ARGUMENT 

The goal of Free and Open Source Software (FOSS) communities is to
create and distribute software exclusively under terms that perpetuate
freedom. When software written by these communities is distributed
without regard for those terms, the product is turned directly against
the developers’ purposerather than spreading free software, the violator
abuses the efforts of FOSS developers, spreading non-free software and
depriving other users of the rights the developers intended them to
have. This directly and immediately harms the developers, and also
undermines the community’s unifying values, working a harm as diffuse
and complex as the relationships that compose the community. These harms
cannot be adequately quantified or compensated, and thus the traditional
equitable view is that they must be prevented. The injured developers
require and deserve injunctive relief because money damages alone cannot
redress the injury caused by the infringement of their copyrights. 



ARGUMENT 

I. DEVELOPERS USE FOSS LICENSES TO PROMOTE FREEDOM 

Developers apply FOSS licenses to their software to grant others the
freedom to use, copy, modify and redistribute the software for no cost.
In return, they require those who take advantage of their generous terms
to perpetuate that freedom when they do so. In many FOSS licenses this
purpose is explicit; the most popular license says that it “is intended
to guarantee your freedom to share and change free softwareto make sure
the software is free for all its users.” The Free Software Foundation,
GNU General Public License v2.0(1991), at
http://www.gnu.org/licenses/gpl–2.0.html [hereinafter GPL]. 

These freedoms are not sentimental or abstract. They allow downstream
developers to build atop FOSS instead of starting from scratch (a
process that is often a cost-prohibitive barrier to entry), and they
give users real, immediate power. With access to source code and the
right to modify it, those downstream developers and users can make the
software more useful, remake it into something wholly new, or even turn
it into a competing product. For example, there are dozens of successful
operating systems built on top of Linux, the operating system “kernel”
included in GNU/Linux products sold by companies such as Red Hat,
Novell, and Nokia, as well as non-commercial operating system
distributions such as Debian and Ubuntu. Because these rights that FOSS
developers share so freely are ones that competitive entities regard as
valuable property, proprietary software publishers do not offer them to
end users at any price.2 In commercial software contracts, they command
substantial royalties. FOSS developers, however, typically forgo
royalties and instead take their compensation in the spread of freedom. 

The positive freedoms granted in FOSS licenses are protected by
corresponding restrictions which preserve the same freedoms for the
developers and all users. For example, GPL licensees must: (i) grant to
others the same rights they received; (ii) include a copy of the license
when they distribute the software; (iii) make recipients aware of their
rights; and (iv) license programs derived from the original program
under similarly free terms. These requirements ensure that the work of
all contributors remains free; preserving that freedom and sharing it
with others is the only consideration demanded of licensees for exercise
of all these rights inthe software. 

FOSS licenses (and the freedoms they grant) are devised to be passed
among peopledevelopers and users alikewithout limit, allowing all
recipients to redistribute the software and many to add value. Cutting
off this progression by distributing under non-free license terms
curtails the freedom not just of the initial recipients but of the
unknown number of others who will never receive the software from them
or have the opportunity to build upon the enhanced software. In turn,
the initial developers never realize the benefit of those lost
contributions. 

Those who violate the conditions of FOSS licenses appropriate all the
value of the software, but deny its authors the sole object of their
efforts, the freedom embodied in and protected by the FOSS license. This
misappropriationdestroys the very purpose for which the developers write
the software. In this way, every violation harms the developers directly
and immediately. In the proprietary software licensing context, the harm
done by an infringer is the loss of license revenue to the copyright
holder. In the FOSS context, the infringer harms every present and
future possessor or developer of every copy of the software. 

II. LICENSE VIOLATION HARMS COMMUNITIES OF DEVELOPERS 

Unlicensed and non-free distribution of FOSS harms the developers not
only by directly subverting their efforts, but also by damaging the
mechanism of cooperation by which they produce software. FOSS developers
work within communities in which almost all work is strictly voluntary,
i.e., not financially compensated. If developers’ work is exploited,
their choice to participate in the community is reduced to a prisoner’s
dilemma: anyone can defect from the common terms, receiving the benefit
of others’ cooperation and also punishing it as described above. Over
time, the community will be deprived of contributions, as developers are
discouraged from contributing by repeated exploitation. This harm cannot
be compensated by money damages, as no amount of money can reconstitute
a community. 

Other developers in the affected community suffer in several different
ways. First, they lose the software enhancements the contributions would
add. As a result, they cannot build upon the missing contributions or
have their own contributions improved by others. The software suffers,
as do the developers and users who depend on its quality and continued
improvement. 

Second, the community’s collaborative spirit suffers because it depends
upon mutual trust, which the violation undermines. FOSS is produced by
mass collaboration, often among people who have never met face to face,
heard each other’s voices, or even seen pictures of one another. It is
difficult to build and maintain trust when the terms for cooperation can
be flouted without reprisal. FOSS licenses enforce a minimal set of
common values and goals, and allow strangers to collaborate without fear
that their FOSS contributions will simply be hidden, packaged and sold
without their consent. 

These harms to the developers’ interest in productive, trustworthy
development communities are impossible to quantify; their manifestations
are as varied as the motivations of individual members and the
relationships between them. Therefore, money damages are incapable of
compensating for them, and injunctive relief is necessary and
appropriate. 

III. LICENSE VIOLATION INJURES THE RELATIONSHIP BETWEEN FOSS DEVELOPERS
AND THEIR USERS 

FOSS copyright licenses are not just dry recitations of grants and
conditionsthey are themselves advocacy and outreach efforts, and they
define the relationships between participants in a community. By giving
people freedom, developers make a potent argument about the value of
that freedom, and they invite users to join them in extending that
freedom to others by making more FOSS. FOSS licensees do not only submit
to the legal boundaries of the license, they also by implication adopt
its political and non-economic principles. 

A license violation destroys the invitation. It converts free software
into merely software; participants in a community into merely end users.
Because every user is a potential volunteer, interrupting the connection
between projects and users deprives the projects of their most valuable
resource, people’s time and attention. Over time, renewing this resource
is the difference between the projects that are successful and those
that are defunct. 

Projects cannot buy volunteers, goodwill, or word-of-mouth, which is why
they secure user freedoms through license conditions rather than
contractual covenants. Copyright doctrine recognizes that money damages
are often insufficient in infringement cases, and favors injunctive
relief when the resulting harm is noneconomic. See Wildmon v. Berwick
Universal Pictures, 983 F.2d 21, 24 (5th Cir. 1992). To FOSS developers,
the cost of violations far exceeds any financial price. 

Because money is rarely a means and never an end in FOSS communities,
money damages can never repair the harm done when a community’s message
to potential new developers and FOSS adherents is lost as a result of a
license violation. This unrealized potential for growth cannot be
estimated, much less measured in dollars. For these reasons, injunctive
relief is the only way to protect FOSS developers when their copyright
licenses are violated. 


IV. LICENSE VIOLATION HARMS THE PUBLIC INTEREST 

FOSS development provides enormous benefit to the public. For the
average user, it provides an alternative to the royalty-based,
unmodifiable, proprietary software that is the only other option in the
marketplace. Already, a freely modifiable and free-of-cost FOSS program
is available to perform any task commonly required by home and
enterprise computer users. They can share these programs freely,
enabling them to collaborate without concern for incompatibility. And
they can access the development process and work with others to improve
the quality and functionality of the software. 

Businesses that use FOSS also have greater choice in selecting a
software service provider. Many companiesincluding Canonical, Red Hat,
and Oraclepackage GNU/Linux operating system distributions for
enterprise users, but those users are not bound to their initial
suppliers for support. Because an enterprise user, like all users, has
the right to receive the source code to the FOSS running its systems, it
can turn elsewhere or to itself for support if its vendor proves
unsatisfactory. 

Contrary to a popular myth, FOSS developers don’t just produce low-cost
clones of proprietary software. FOSS is qualitatively different in that
it favors open standards and data portability where proprietary vendors
often choose lock-in. FOSS programs rarely come with the restrictive end
user license agreements that are standard parts of almost every
proprietary software package. Dispensing with collecting money also
allows FOSS communities to avoid the need to control the flow of
software and data, which means FOSS software always seeks to facilitate
novel facilities, even in the absence of an ability to tax them. 

Consumer electronics manufacturers use FOSS to develop products and
bring them to market more quickly.3 The routers and modems in our homes
and the cellphones in our pockets all benefit from enhanced features at
a reduced price because they are built on FOSS. By eliminating software
development and licensing costs, more companies can competitively
produce software-embedded appliances. This makes markets more
competitive and new technology available to a broader range of
consumers. 

FOSS lowers barriers to entry for businesses by reducing software and
hardware costs. This is especially significant in developing economies,
where the cost of proprietary software licenses is often prohibitive. By
providing world-class software at zero cost, the FOSS community levels
the playing field between fledgling businesses and large, established
market leaders. 

Given the broad range of individuals, businesses, and entire industries
that benefit from FOSS, it is impossible to quantify the ultimate harm
caused when infringement dismantles the chain of FOSS development.
Because developers are motivated to contribute to FOSS by their belief
in freedom, the loss of their contributions is irrecoverable: the work
they do, on the terms they offer, is not available elsewhere at any
price. The law of public nuisance has long recognized that a swift
injunction is the only effective remedy for such harm to the public
interest. See Wedel v. United States, 2 F.2d 462, 463 (9th Cir. 1924). 

V. THE HARM CAUSED TO FOSS DEVELOPERS BY COPYRIGHT INFRINGEMENT FROM
LICENSE VIOLATION MEETS WINTER’S REQUIREMENT OF IRREPARABLE INJURY 

The Supreme Court set out the standard for a preliminary injunction in
Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008): 

A plaintiff seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.

As detailed above, FOSS license violations cause two immediate harms:
they deprive the developer of the rights reserved in the license, and
they sever the developer’s legal relationship with other licensees who
never become aware of their rights. These harms are not merely likely,
but certain, because they are effected at the instant the violation
occurs. They are irreparable because they are noneconomic and so damages
cannot compensate for them. See Wildmon v. Berwick Universal Pictures,
983 F.2d 21 24(5th Cir. 1992). Nor can damages remedy the erosion of the
development community. Moreover, though this harm too begins
immediately, it is compounded by time so that its ultimate scope is
uncertain at the outset. Therefore, the community’s resulting loss
“cannot [be] remed[ied] following a final determination on the merits,”
Am. Hosp. Ass’n v. Harris, 625 F.2d 1328, 1331 (7th Cir. 1980), and is
irreparable for that reason as well. 

Because all of these harms are inevitable consequences of the copyright
infringement resulting from FOSS license violations, developers always
suffer irreparable harm when their software is distributed in
contravention of the license terms. Because this harm is also damaging
to the public’s interest in the availability of FOSS, an injunction is
also in the public interest. 



CONCLUSION 

For these reasons we agree with this Court’s prior statement in this
case: 

Copyright licenses are designed to support the right to exclude; money
damages alone do not support or enforce that right. The choice to exact
consideration in the form of compliance with the open source
requirements of disclosure and explanation of changes, rather than as a
dollar-denominated fee, is entitled to no less legal recognition.
Indeed, because a calculation of damages is inherently speculative,
these types of license restrictions might well be rendered meaningless
absent the ability to enforce through injunctive relief.

Jacobsen v. Katzer, 535 F.3d 1373, 138182 (Fed. Cir. 2008). 

Respectfully submitted, 

Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898
Counsel for Amicus Curiae
 



CERTIFICATE OF COMPLIANCE 

I do hereby certify pursuant to Federal Rule of Appellate Procedure
32(a)(7)(B) that the foregoing Brief of Amicus Curiae conforms to
Federal Rule of Appellate Procedure 32(a)(5), 32(a)(6), and 32(a)(7). 

I further certify that according to the word count of the word
processing system used to prepare this brief, OpenOffice.org Writer
2.4.14, the relevant portion of this brief contains 2,501 words, is
double-spaced (except for headings) and appears in 14-point proportional
Times New Roman font. 

June 15, 2009 ___________________________________________ 

Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898
Counsel for Amicus Curiae 
 



CERTIFICATE OF SERVICE 

I, Daniel B. Ravicher, hereby certify that I caused 12 copies, including
original, of the foregoing: 


Brief of Amicus Curiae Software Freedom Law Center
in Support of Plaintiff-Appellant

to be sent for hand filing on the 15th Day of June, 2009 to: 


Mr. Jan Horbaly, Clerk
U.S. Court of Appeals for the Federal Circuit
717 Madison Place, NW
Washington, DC 20439

 

I further certify that two copies of the foregoing Brief of Amicus
Curiae were served on the 15th Day of June, 2009, by Federal Express on
the following counsel of record: 


Victoria K. Hall, Esq.
Law Office of Victoria K. Hall
3 Bethesda Metro Suite 700
Bethesda, MD 20814 
 

Counsel for Plaintiff-Appellant 

David McGowan, Esq. 
5998 Alcala Park 
San Diego, CA 92110 

 

Counsel for Plaintiff-Appellant 

R. Scott Jerger, Esq.
Field Jerger LLP
610 SW Alder St. Suite 910
Portland, OR 97205

 

Counsel for Defendants-Appellees

June 15, 2009 ___________________________________________ 

Daniel B. Ravicher, Esq.
Software Freedom Law Center
1995 Broadway, Fl. 17
New York, NY 10023
Tel.: (212) 212-461-1900
Fax: (212) 598-580-0898
Counsel for Amicus Curiae 
 

Copyright © 2009, Software Freedom Law Center. Verbatim copying of this
document is permitted in any medium; this notice must be preserved on
all copies. 

1Amicus has filed a contemporaneous motion seeking leave to file this
brief. No part of this brief was authored by counsel for any party and
no party, person, or organization contributed to this brief besides
amicus and its counsel.

2“Proprietary” here means the opposite of “free and open source.”

3FOSS is found pervasively in products sold by Cisco, Palm, Google,
Nokia, and countless other companies. 

4Please note that the HTML and Postscript versions of the brief were
actually converted into LATEXbefore publication; the one filed with the
court was prepared with OO.o Writer, and is available on our site in its
PDF version.
------

regards, 
alexander. 

-- 
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)