[oclug] Hypothetical

[Brad Barnett]

On Fri, 13 Apr 2007 07:35:06 -0400
miden <miden at travel-net.com> wrote:

> Hypothetical Situation: Let's say I'm being nudged/pushed to start
> exhibiting again. Let's also say that I am thinking of working with
> digital images alone and in combination with natural media.
> 
> Hypothetical Anxiety Point: I would prefer to use free/open source
> software but, BUT, what position would I be in if the software I used
> was found to contravene some patent or copyright? Would this affect the
> 'legality' of the images? Would the owner of the copyright/patent have
> some claim against me?
> 
> Considering that large proprietary software companies have nice big
> legal departments dedicated to protecting their investments, would I be
> better off positioning myself behind that shield?
> 
> This is a deal killer issue. I wouldn't want to put what 
> would be a year or more of work at risk.
> 
> I realise that as I am not putting this issue to a legal firm IANAL is
> in full force but would never-the-less appreciate any opinions.
> 
> -m
> 


Miden,

Sorry for not responding earlier, I've been busy with Debian upgrades,
thanks to the wonderful release of 4.0.

Anyhow, no.. your copyright is not affected by the software that created
it, or the status of the software's legality. 

However, any legal battles that effect the end of such software, or change
it dramatically, could result in you being unable to open your work in
progress.  Such being the case, I would at least suggest you work with
software that has a good export function.  While you may lose some quality
or other details when exporting, at least with a healthy export option
available, you could move to other software if need be.

As for you being inconvenienced by any possible legal issues with the
software you use, I find this to be the most remote situation possible. 
Let's, for example, say that software X is found to infringe.  It's
happened, after all, with programs big and small, proprietary and non.  I
have never, in my entire life, heard of a case where whomever holds the
patent approaches the end user.  That does not mean it has not happened,
but this is clearly extremely rare.

Typically what happens is that the entity that infringed upon the patent
is the one that is sued.  Either a settlement is reached, or a judgement
is passed by a court of law.  When that happens, generally the settlement
or judgement are designed to compensate the patent holder.

If the patent holder is compensated for infringement, then clearly the
software that he sold/gave away/whatever is now legitimate.  Often such
settlements will also contain a resolution against further infringement,
such as royalties or the infringer removing that protected tech from his
software.

The case is no different with OSS.  Someone contributed the patch, or
co-contributed.  That would be the infringer, not you.  You, as the end
user, are in reality under no risk, with the exception that the software
you've been using may cease to become available.

Of course, that's always a worry, and more so with the closed source
model.  It's rare that OSS software disappears without a copy of the
sources somewhere.  Closed source software shops, however, can go
bankrupt, and that software can vanish from the marketplace forever.

Some closed source software packages even have yearly key renewals, making
them useless after a certain date.  I'd definitely hate to be caught
holding that bag, with all my work saved in some proprietary format, the
key expired, and the company bankrupt.  Certainly one can not always tell
when a company is going to fold, it can often be quite a shock.

I provide technical support for some firms in just such a situation, with
literally tens or hundreds of millions of dollars of IP in closed source
formats.  Some of the work I do for these firms is to help them move to
open source.  They're scared, after all.  Who wants their entire business
model to depend upon another company's fortunes, if it is not absolutely
necessary... especially when that company may be a smaller, niche market
seller of software.

They could literally vanish tomorrow.

Anyhow, long story short, you're worrying needlessly.

Still, if worry you must, then do the prudent thing.  Don't tell anyone
what software you use!  You are under no obligation to do so!  Make sure
it has a good export option, use it without disclosure, and move to
another package if you deem the time is right.

Again, I think it is absolute overkill, but if it sets your mind at
ease...