Copying open source is not a violation of copyright?!

  

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"Copying open source is not a violation of copyright."  That's what I got out of the JMRI lawsuit, i.e. Jacobsen vs Katzer, i.e. the model railroad story.  Here's what I understand:

There was this model railroad guy who wrote some open source software, JMRI, licensed under the Artistic License.  (A bunch of other people also helped!)  The model railroad guy starts receiving bills for over $200K from a model railroad company saying that he is infringing on their patents and owes them royalties.

He figures he’s not infringing on their patents because he wrote his stuff first, so he sues the company for having a fraudulent patent and for copyright infringement.  The courts determine that the company actually did take the JMRI code, strip the copyright notices and use it.  However, they decide that is not copyright infringement.  Since the software was freely available and it’s a “nonexclusive license,” anyone can copy it and use it.  The fact that they didn’t include the copyright notices is a breach of contract not copyright.  But no damages are owed because the software is free.  So basically I think the company got away with stealing open source software!

I couldn’t find any mention of it anywhere, but it looks like their patents would be invalidated since there is clearly prior art.  (The code they copied.) So in a way JMRI won the case and the guy doesn’t owe $200K but open source took a step backwards.

What's that mean to open source software?  Nothing at the moment but if other courts decide the same thing, this could have lots of implications.  It definitely would mean that open source software licenses aren't nearly as strong as we thought and hoped they are.  That said, the few attorneys I've talked to seem to think this ruling was "wrong."

You can read more about this:

• On the JMRI page.
• On Groklaw.  (This is an older story and doesn't include anything about the recent story.)
  
• On Mark Radcliffe's blog.