EU plan could put open sourcers in court

ZDNet (UK) ^ | August 2, 2005, 11:51 AM PT | Ingrid Marson

[Bush2000]

EU plan could put open sourcers in court
By Ingrid Marson, ZDNet (UK)
Published on ZDNet News: August 2, 2005, 11:51 AM PT

The European Commission has proposed a law that could allow criminal charges to be pressed against a business using software believed to infringe upon another company's intellectual property.

The proposed directive, which was adopted by the European Commission last month, would allow criminal sanctions against "all intentional infringements of an IP right on a commercial scale."

Richard Penfold, a partner at law firm DLA Piper Rudnick Gray Cary, said last week that the proposed directive could "quite possibly" allow the imprisonment of the boss of a company that is using infringing software, although it would depend on whether the defendant can argue that the infringement was unintentional.

It is unusual for companies to target the users of software, rather than its manufacturers, but there is one well-known example--the cases brought by the SCO Group against car maker DaimlerChrysler and auto-parts retailer AutoZone over their use of Linux. SCO claimed that AutoZone infringed on SCO's Unix copyrights through its use of Linux and that DaimlerChrysler had breached its contract with SCO.

Ross Anderson, the chair of the Foundation for Information Policy Research, said the proposed directive could help SCO or other companies in future intellectual property infringement cases against open-source software.

"In future somebody like SCO will have another course of action open to them--the threat of criminal charges. This threat would enable SCO to cast a larger legal cloud," said Anderson.

[N3WBI3]

So if it does pass is it then true? and does not its very proposal show strong support among lawmakers for a law which will hurt Linux?

[unixfox]

Not this one, brewed it myself. Open Source you might say!

[D-fendr]

FOSS advocates are simply going to have to start playing the IP game…"

Again, I'm far from an OSS expert, but my understanding from those that are is that OSS/GPL had this base covered. I remember something like "that's why it's never been challenged (or successfully challenged?) in court."

Maybe someone will weigh in on this and correct me...

That aside, it seems this law goes beyond normal IP protection into intimidating potential customers. It would seem to me that one competitor could hamstring another's marketing by slinging FUD at the target market.

[D-fendr]

one of your disgruntled employees dumping it in Open source/the borg and watch your investment go down the drain. Prosecuting the disgruntled employee will do nothing to recoup your losses.

I'd never considered this. Obviously, you have action against the employee. Is it non-recoupable because the genie is out or because of the OSS model?

The question is what's the best solution to the problem.

True. I kinda see both sides of the software copyright extremes. It seems impossible to describe well enough and ripe for abuse; however, IP protection is both just (IMHO) and encourages innovation.

This laws direction, however... From the customer side, I think it unfair for me to risk jail time if I err in my evaluation of the IP arguments of my software vendors. Take for example if it were in effect and I'm in the market for SCO, Novell or IBM products. And if I choose wrong I could do time?

On the road to a bridge too far I think.

[D-fendr]

In case you haven't seen it, this article addresses some of the issues, at least it does from my point of view:

Secretive Buyer of Some E-Commerce Patents Turns Out to Be Novell ~~ Patent laws needs major fixing

[zeugma]

I would imagine that if this passes, that Microsoft will have to be more careful not to pull another "Stac", lest Bill Gates be hauled off to jail on his next european vacation.

[Nick Danger]

if this passes, that Microsoft will have to be more careful not to pull another "Stac", lest Bill Gates be hauled off to jail on his next european vacation.

You obviously haven't read the memo. People can only go to jail for infringing IP if they are using open source software. That was in the official Microsoft press release.

If Microsoft infringes a patent (which happens frequently), Microsoft users cannot be hauled into these criminal courts because... umm, well, just because. It's not part of the FUD.

[clee1]

although it would depend on whether the defendant can argue that the infringement was unintentional.

Innocent until PROVEN guilty doesn't apply in Eurabia, I see.

[FastCoyote]

"The free beer is going sour..."

The free beer has aleady been drunk and we are on to the Ripple.

The intrinsic problem with thse lawsuits is that
1) bits are essentailly free, no matter how much you'd like to charge for them
2) any program can be duplicated

That's why I'm out of the intellectual property business, both in software and the book business (sold some books along the way, same problem).

So, when the dinosaurs saw their environment changing, they could either adapt (become birds) or stay big and bloated and die.

All this legislation will do is make money for lawyers.

[dr_who_2]

European politicians are a__holes, and you're nuts.

[ShadowAce]

you don't want one of your disgruntled employees dumping it in Open source/the borg and watch your investment go down the drain.

This is just an uninformed comment. OSS projects (at least the reputable ones) don't accept commercial code from "disgruntled employees." The code's lineage must be well documented for it to ever find its way into OSS.

What most people don't seem to realize is that the GPL depends on copyright in order to function properly. If the copyright holder is not the one to GPL the code, then it is not accepted. Period.

OTOH, any disgruntled employee can steal code and release it. It doesn't matter what the license is. Windows code has been released into the wild before and no one has claimed its gone GPL, have they?

[for-q-clinton]

This is just an uninformed comment. OSS projects (at least the reputable ones) don't accept commercial code from "disgruntled employees." The code's lineage must be well documented for it to ever find its way into OSS.

If my comment is uninformed, I guess you're rather naive.

[ShadowAce]

OK. Then I guess it's rther easy to prove, then. Just show me where/when it's been done.

[antiRepublicrat]

You bring nothing to the table that interests the lawmakers that entertain new legislation. You aren't contributing any money, your work devalues software industry jobs and encourages outsourcing, and you're enriching our many foreign antagonists such as China. There's no upside.

Money and threats of retaliation being the main thing I don't bring to the table. What I do bring is lower cost of running the tens of thousands of businesses in this country, money that can be used to expand, meaning job growth. I also bring lower cost of running government, but that's not something they're interested in.

[for-q-clinton]

Well, I know SCO said something like this happened. I haven't followed it completely and I'm not sure if their case has fallen apart. But either way it would have to be adjudicated via the courts and that takes time and money. If I'm a small business I can't afford to take on the borg. However, I do know some businesses did pay SCO a license agreement so that validates part of the assertion.

Now prove to me where this hasn't occurred? I know it's impossible to prove a negative, but it's also a silly question to ask to prove something happened. Often laws are created in antipicpation of likely things to happen. I think the SCO issue just brought it to the attention of many people and the politicians now "get it".

[for-q-clinton]

What I do bring is lower cost of running the tens of thousands of businesses in this country, money that can be used to expand, meaning job growth.

I thought you were for OSS? Last time I checked a windows environment was cheaper to run than a Linux plus other OSS. When did you switch in favor of Windows?

[cloud8]

> FOSS advocates are simply going to have to start playing the IP game;

True. Though I think that the EC is concerned more with enriching their lawyer pals than protecting intellectual property rights.

[N3WBI3]

IP protection is both just (IMHO) and encourages innovation.

If patents were always granted in as loose terms as they are in the software industry the only planes thay would have flown would have been built by the write brothers.

They *really* need to be more demanding of what is a pantable idea, the shopping cart icon on amazon does not count..

[N3WBI3]

you don't want one of your disgruntled employees dumping it in Open source/the borg and watch your investment go down the drain.

This would be covered under copyright, we dont need a law saying that if youre suspected of hving violated a patent you can be sued criminally without any proof. The only people who will get rich on this is the lawyers..

[N3WBI3]

fqc,

Shadow knows a bit more about how code gets into oss than you do and he is 100% correct. No major porject (Linux, FireFox, ...) will accept code from anyone but the copyright holder. It is required under the GPL.