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IP v IP. (Intellectual Property versus Innovation Protection) Part 1: Courts and Coders

Posted by panaseam on September 27, 2006 at 1:44 PM PDT

There are numerous small open source projects hosted on and whilst this post, in itself, is not Java specific it is as the owner of one of those small projects that I voice my concerns!

It's a reasonable guess that many programmers find legal stuff boring as hell and as far as possible ignore it. Unfortunately in this world of patents and copyrights it could be only too easy for an ordinary open source coder to fall foul of alleged intellectual property infringement. Ignoring the legalities is not an option, in the eye of the law "Ignorance is no defense". Also complacency is anti-innovative and therefore unacceptable.

If you program in a purely commercial environment you may feel legal issues don't affect you, but if you use any open source software at all then you should at least consider how legalities could affect that software and its future availability.

Just to make a point consider this scenario:

I have a project hosted on
I upload some code and make an announcement telling all the world how clever it is.

Now here's the essence of the problem:
I wrote the code in the UK but it is hosted on an American server. What jurisdiction does it fall under?
This code is visible anywhere in the world that can be accessed via the internet.
Can I be 100% sure my code doesn't infringe somebody's IP according to my own country's laws?
Worse how do I know it doesn't infringe someone's IP according to some other country's law?
Even worse, what if someone wants to stop me from continuing my development because they perceive a commercial threat to their own products? If they have enough money they can simply sue me in a country of their choosing on some dubious grounds knowing that it is unlikely I can possibly afford to defend myself. So I'm then left with the choice of disbanding my project, with the hope that they withdraw the lawsuit or risk having the court rule against me, levying some ludicrous fine and basically preventing me from ever going to that country for fear of being arrested for non-payment of that fine. At least if I got sued in my own Country I may be able to attempt to defend myself, although the likely outcome of that is far from promising even if I am genuinely innocent.

Far fetched isn't it?

Unfortunately not! (apart from the implication that I could ever write some clever code)

As an example of what can happen, although not IP related, consider UK based anti spam company Spamhaus being taken to court in Chicago [ ].
Although Spamhaus could have probably won the case, they chose not to defend themselves and got heavily fined. Since a US court has no jurisdiction in the UK, Spamhaus can avoid paying the fine but will it's directors ever be able to visit the US without fear of being arrested? This happened in a US court but it could happen anywhere. Is this justice?
[ ]

If something like this happened to me it might mean I'd never be able to meet Mickey, Minnie, Donald and Goofy again, not to mention missing out on $3.99 breakfast buffets and 7.5 ounce choc chip sandwich ice creams. Now that is serious!

The problem is that legal systems don't prevent you being sued even when you haven't done anything wrong. Consider SCO v IBM. Even though this case involves two large companies rather than large versus tiny, which is my real concern, it still shows how a business with enough money can launch a lawsuit against anyone on pretty tenuous grounds. There is also a far more sinister undertone in the popular belief that SCO were in fact "put up to" the action by a third party.

Anyway, whether or not these cases are relevant, my point is that the patent/copyright jungle is a nightmare for ordinary hackers to even begin to cope with. Larger projects and especially commercially supported ones probably have the resources to at least give a supportive legal umbrella for its members. Any of us working alone or in small groups have no support whatsoever.

Remember that open source is making it in the big league, some of the existing big league players could get seriously worried about losing their position and the money that goes with it. They will stop at nothing to maintain that position, these guys play dirty and enjoy bullying little guys so beware, things could get very nasty!

One possible solution is to try to get your own ideas accepted as a sub project of an existing large commercially supported project. Even this could be problematic. Who do you contact? Do you send a detailed description or even source code to someone you don't even know? Remember, in this scenario, you probably haven't even published your work so if they chose to they could claim it as their own and you, an unknown outsider, wouldn't stand a chance of convincing anyone of the truth. Of course they could simply tell you your idea is rubbish because they genuinely think it is, or even because they think it could undermine their own cherished ideas. I know it sounds a very dark picture to paint but history is full of stories of people being fleeced, even Walt Disney got ripped off before he created Mickey Mouse.

Innovation and the right to innovate do not just belong in the hands of the rich and powerful. It is no good pretending that innovation only occurs in large corporate environments. The beauty of computer programming, particularly in the Java environment, is that pretty well anyone can join in and innovate with minimal resources. The problem is that such individuals are potentially wide open to abuse by anyone with the money to employ a lawyer.

You could point out that even in this hostile environment there have been plenty of successfully exploited innovations and many more will occur. But how many innovations have failed or been lost because of it? Taking the lame view that "it's always been like that" is simply not acceptable it is anti-innovative.

So to conclude:
If the companies that claim to support open source really want open source innovation to continue at all levels, not just in their own pet projects, then they should seriously consider setting up some sort of legal support service to at least give helpful advice to open source projects. An international facility primarily funded by interested corporations with an affordable membership fee for bona fide developers would be a good start.

There is one organization that is along the right lines, namely New York based Software Freedom Law Center
[ ]. Perhaps, with sufficient funding, they could form the core of a global facility.

Anybody got any thoughts or suggestions?

Comments containing "sucks" and "go away you boring old fart" will be considered "off topic" and the poster should be "sued for every penny they have", although I have a preference for $100 bills myself.:).

Sorry but there will be a follow up
Part 2: Is a Java interface copyright protected?

To anyone that read this far, thanks for your time.

Happy hacking,

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