Copyright and Open Source

[Bathrone]

So, here we have Slysoft openly flogging their CSS and RPC workarounds all the while making a dime off the business. DVD Jon, in contrast, is dragged through court, more than once I will add, for what - DeCSS?

It continues with XVID. Now with x264, the MPEG LA patent pool withold the IP to AVC and regardless of whats in any GPL those countries supporting software patents places x264 in a questionable position.

The pattern continues. Divx fork out the dollars for licencing. CoreAVC fork out the dollars for licencing. The commercial outles pay for the licenses. The open source products dont and try to stay under the radar.

The irony my freinds is when companies like Slysoft become licensee's of the IP - then *sell* tools to crack it. Ha! But if you do it for free, look what happened to DVD Jon.

:devil:

[celtic_druid]

If Jon lived in Antigua, then I think he would have also been ok.

[Shinigami-Sama]

if private industry had less power in courts he would've been ok as well

[Adub]

Isn't it sick that companies have so much power in the legal systems of today? I thought justice was blind? I didn't know that it hired people to carry around it's wallet.

[Mug Funky]

don't opensource projects like xvid and x264 fall under a sort of academic fair use? in that the source can be distributed but not binaries?

i can see where MPEG-LA are coming from when it comes to this stuff. if the companies that develop this stuff weren't compensated there'd be that much less reason to pursue R&D, which is already nowhere near as actively pursued as it should be.

there's a balance that needs to be struck i think - xvid, x264, ffmpeg, videolan, etc certainly need to be protected, but MPEG-LA and similar bodies clearly are necessary as well (but perhaps not in their current form).

[Doobie]

don't opensource projects like xvid and x264 fall under a sort of academic fair use? in that the source can be distributed but not binaries?

Academic Fair Use? Do you think the law or courts really make a distinction between distributed source code vs. binaries? I think more likely, MPEG LA et al. have just decided they have nothing to gain by going after open-source infringers that pretend to hide behind academic Fair Use.

[Inventive Software]

They also fall under the banner that people donate to cover the licensing costs, but are protected in some way by the open source license they're under.

[PatchWorKs]

That's the reason 'cause i support Xiph !

[shevegen]

"Do you think the law or courts really make a distinction between distributed source code vs. binaries? "

Yes, even the ugliest IP-Law-country in the world (The USA) makes a BIG distinction between source code and binaries.

Isnt MPEG LA more into the DRM business anyway?
How comes they go against something that doesnt even remotely hit on the DRM stuff...

[Doobie]

Yes, even the ugliest IP-Law-country in the world (The USA) makes a BIG distinction between source code and binaries.

I very much doubt that. I'm not aware of IP laws which make a distinction between binaries and source code. Maybe you could provide an example? It's curious that licenses for Xvid, LAME, etc. don't mention the laws that protect them. Rather, they blatantly try to rationalize themselves around laws. For example, LAME claims, "Source code is considered as speech, which may contain descriptions of patented technology. Descriptions of patents are in the public domain." They don't identify any laws or court decisions to justify that claim. It's merely a weak legal argument waiting to be tested.

Isnt MPEG LA more into the DRM business anyway?
How comes they go against something that doesnt even remotely hit on the DRM stuff...

MPEG LA owns (rather, represents owners) various patents. They're interested in everything related to their patents.

Here are the reasons I think Xvid, LAME, haven't been challenged in court:

1) All commercial users pay royalties.
2) Open-source users could easily find other "free" ways.
3) Open-source projects inadvertanly help the developers employed by the patent owners.
4) Seriously bad karma would come from attacking an open-source project (bad PR move).

In summery, nothing to gain, lots to lose.

[dragongodz]

It continues with XVID. Now with x264, the MPEG LA patent pool withold the IP to AVC and regardless of whats in any GPL those countries supporting software patents places x264 in a questionable position.

The pattern continues. Divx fork out the dollars for licencing. CoreAVC fork out the dollars for licencing. The commercial outles pay for the licenses. The open source products dont and try to stay under the radar.

the first thing you have to understand is MPEGLA's licensing. for starters they do NOT require any fees for fully working encoders or decoders up to 50,000 units per year. it is only after that point that fees are required.
the relevant information is in this
Q: How is the MPEG-4 Visual Patent Portfolio License organized?
A: See this PowerPoint Presentation.
found here
http://www.mpegla.com/m4v/m4v-faq.cfm

now you may say that surely more people than that download xvid etc. hmm maybe but maybe not and if so from the same person or place or build etc etc etc ? very muddy waters which i doubt the MPEGLA would really want to swim in.

Here are the reasons I think Xvid, LAME, haven't been challenged in court:
add to your list, atleast for xvid, the amount of time and effort to try and find and prove xvid has exceeded the licensing limits somewhere when there are multiple builds by multiple people distributed by many, many places and people.

[sade]

I very much doubt that. I'm not aware of IP laws which make a distinction between binaries and source code. Maybe you could provide an example? It's curious that licenses for Xvid, LAME, etc. don't mention the laws that protect them. Rather, they blatantly try to rationalize themselves around laws. For example, LAME claims, "Source code is considered as speech, which may contain descriptions of patented technology. Descriptions of patents are in the public domain." They don't identify any laws or court decisions to justify that claim. It's merely a weak legal argument waiting to be tested.

Bernstein v. United States (http://en.wikipedia.org/wiki/Bernstein_v._United_States)

[Bathrone]

dragongodz you make some interesting points. If its so easy to get a licence under 50k units, why hasnt xvid or x264 done this? Perhaps there is more than one licence or patent pool involved?

[Doobie]

Bernstein v. United States (http://en.wikipedia.org/wiki/Bernstein_v._United_States)

Nice try.

That case was about export prohibition of some encryption technology, not IP. The source code was 100% the creation of the plantiff and involved no issues of copyright or patents.

A divided court panel, of the most overturned federal appeals court in the nation, struck down the law. The decision was then withdrawn when the feds wanted a full court review. And, then the case dropped after the feds changed the law, before the full review.

The withdrawn court ruling is:Because the prepublication licensing regime challenged by Bernstein applies directly to scientific expression, vests boundless discretion in government officials, and lacks adequate procedural safeguards, we hold that it constitutes an impermissible prior restraint on speech. We decline the invitation to line edit the regulations in an attempt to rescue them from constitutional infirmity, and thus endorse the declaratory relief granted by the district court.

Notice the phrase "prior restraint on speech." That means the law restrains speech that hasn't been made yet (thus gives government officials boundless discretion...). Contrast this to the LAME statement I quoted where LAME is defended precisely because the speech is pre-existing (the published patents).

Also, notice that the ruling mentions scientific expression. In this case, the development of new encryption technology. This does not apply to the use of patented algorithms to duplicate existing technology (e.g. making an open source MP3 codec).