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NewsForge Op-Ed Draws Fire for Calling All Clear  
Source NewsForge
Wednesday, September 29, 2004
Here Furthermore responds point by point to a recent Newsforge's Op-Ed piece, "Closing the legal briefcase on Mambo vs. Furthermore copyright dispute".  On a number of critical issues, columnist Jem Matzan missed the mark.  But his biggest mistake was in calling the game.  This battle is far from over; and while it continues, users remain at risk.

Here we take notable quotes from Jem's article as they appear and answer each.

1. “Now it is time for the facts.”

-- Great lead. However, Jem then delivers an op-ed piece comprised almost entirely of conjecture and conclusions.

2. “Newsforge can definitively say that Connolly's legal claims against the Mambo community are baseless.”

-- Actually, Newsforge cannot "definitively" say anything legal. Moreover, it is patently illegal for Matzan and Newsforge to provide something that can be construed as legal advice.

3. “Connolly believed that this customization was a proprietary one. Since his contract with Sakic stipulated that all copyrights would be assigned to Furthermore, Inc., he figured that he would be able to further protect what he refers to as his "invention." Unfortunately, this invention is neither unique nor new. Many other content management systems have this functionality and have been using it for some time.”

-- Newsforge draws a simple contrary conclusion here. It is certainly NOT an authoritative and vetted legal opinion. The forum for that is a court of law.

4. “It would be impossible for anyone to download Connolly's code without root or direct FTP access to the site.”

-- That’s an assumption not based on any firsthand evidence. Hackers hack variously every day. But that aside, Jem then argues that the "competitor" was in the process of "reverse engineering." However, reverse engineering would still require the permission of the copyright holder.

5. “The code committed to the Mambo OS project was not the same code that Sakic wrote for Furthermore;” and "Emir Sakic developed a way to do the same thing dynamically and committed it to the Mambo core."

-- The code committed to Mambo was done under contract and paid for by the Literati Group. The contract stipulates that “Upon finished project all copyright rights to code written by [Sakic] will belong to literatigroup.com."

6. “Sakic's mistake was not in developing and distributing a derivative work of the code he wrote for Connolly, but in emailing Connolly to tell him what he'd done, with the facetious comment, ‘Hope you don't mind’ tacked on to the end. This is where the trouble started, yet no illegal act had been committed.”

-- Sakic was NOT being facetious. It was genuine because a misdeed had been committed. Newsforge is again discounting fact for the sole purpose of drawing a bias legal conclusion.

7. “Code was not stolen verbatim, and it clearly was not an act of malice on anyone's part.”

-- Not quite sure what Jem is getting at here. It seems that his argument is that if one only slightly misappropriates... and with a good attitude... well, that's okay.

8. “Copyright infringement is a broader term and would seem to be a better fit for this situation; after all, the contract called for all copyrights to be assigned to Furthermore, Inc. But the code was a derivative of GPL-licensed code, thereby making it a derivative work of the parent code and automatically licensing it under the GNU General Public License.”

-- This confuses copyright and GPL. GPL does not automatically rob one of their copyrights.

9. “Connolly claims that since he is the copyright holder of the original code that he can prohibit redistribution of a derivative work of that code even though it's all licensed under the GPL. Eben Moglen, counsel for the Free Software Foundation and Columbia University law professor, wrote an article called "Enforcing the GPL, Part I" in August 2001 in which he wrote: ‘Copyright grants publishers power to forbid users to exercise rights to copy, modify, and distribute that we believe all users should have; the GPL thus relaxes almost all the restrictions of the copyright system. The only thing we absolutely require is that anyone distributing GPL'd works or works made from GPL'd works distribute in turn under GPL. That condition is a very minor restriction, from the copyright point of view.’”

-- Moglen's quote is misapplied. BOTTOM LINE: THERE IS NO DUTY TO REDISTRIBUTE MODIFIED GPL CODE. The code was redistributed improperly by the Mambo project as it was gotten without Furthermore's permission. This also makes derivative(s) an unlawful by-product.

10. “Code comparison”

-- Jem is partially comparing one derivative work with another derivative work. It's apples and oranges and certainly misleading.

11. “Mambo users are safe. [BUT] Nothing can stop Connolly from making good on his public threats to sue innocent end-users -- anyone can file a lawsuit for any reason -- but the legal basis for such action is nonexistent.”

-- Incorrect. Mambo users are not safe, per se. And that's not a consequence of the wildly erroneous "anyone can file a lawsuit for any reason" assertion. On filing a claim, an attorney certifies that the pleading "to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, is well grounded in fact and is warranted by existing law."

A LEGAL CLAIM is the single most important point in this matter. The fact that this matter rises to that potential puts users of Mambo OS in jeopardy. And what makes this such a lightning-rod issue is that users of any OS software developed by projects without the systems and safeguards in place to protect users, offers them a trojan horse of LEGAL EXPOSURES. Unfortunately, that might be more common than not.

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What form of resolution is best for Open Source?
Parties compromise and agree to a reasonable settlement
Parties defer to Industry arbitration
Castley and Mambo hobbiest ignore it hoping it goes away
Furthermore sues individual Users
Various opinions and mudslinging in tech and business press ongoing
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