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August 17, 2007: Ruling on January 19th Motions

On August 17th, the Court ruled on the motions from the January 19th hearing. We won on perhaps the most important issue, but lost on several others. Perhaps the most striking part was the Court's decision to deny our request for a preliminary injunction. You can read the reasoning on pages 8 through 11 of the ruling, but the conclusion is:
The condition that the user insert a prominent notice of attribution does not limit the scope of the license. Rather, Defendants' alleged violation of the conditions of the license may have constituted a breach of the nonexclusive license, but does not create liability for copyright infringement where it would not otherwise exist. Therefore, based on the current record before the Court, the Court finds that Plaintiff's claim properly sounds in contract and therefore Plaintiff has not met his burden of demonstrating likelihood of success on the merit of his copyright claim and is therefore not entitled to a presumption of irreparable harm.
This is very troubling, both for us and for Open Source efforts in general.
  • The facts in this case are the strongest imaginable: Katzer admitted copying the JMRI files, admitted removing their copyright notifications, admitted being aware that JMRI was distributed under license, admitted redistribution of the modified version, and admitted doing it in violation of the license terms. This kind of problem could happen to any open source project.
  • The ruling rests on the Court's uncertainty that an Open Source organization will ever be able to enforce copyright on software that can be downloaded from the Internet. The Court's reading of the law in this area expressed uncertainty, but in the end decided that our "claim properly sounds in contract", and therefore denied the preliminary injunction.
  • This ruling is particularly troublesome, because the logic it contains can be used for any project which freely distributes software using something that can be construed as a "nonexclusive license".

We are carefully considering an appeal of this decision. As long as the Court's logic stands, we can't enforce our copyrights. Further, we need to get the strongest possible decision from an appeal, because the "uncertain law" will be clarified by that appeal and will apply to other cases in the future. We're going to need help to do that, and we're actively looking for that help.

The Court also dismissed our claim against Katzer for cybersquatting. The Court apparently misunderstood the reasoning behind our argument, and decided that we had waived our claim by saying that we were only asking for the return of decoderpro.com "in rem". On the contrary, we want Katzer held responsible under the law for his illegal actions, beyond just being forced to return our domain name (which we now have back due to the WIPO, not the Court), and we said so in the hearing. We are considering how to go about getting this claim reinstated.

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