A big win for Free Software

Mako says

Greg Pomerantz pointed me to this article on a recent 2nd Circuit copyright decision. The case basically disambiguated the term “owner” in 17 U.S.C. §117 (a). It may seem nit-picky and obscure but (AFAICT, IANAL, OMG) this decision has good implications for free software hackers.


The case in question is Krause v. Titleserv Inc., 03-9303. Here is the back story: William Krause was a programmer and consultant hired by Titleserv to write a series of programs over the course of a decade. When Krause left Titleserv, he left the company the right use the software but not modify it. Using technical means that are not entirely clear from what I’ve read, he left the software “locked” so that the company did not have access to source code or the ability to modify the program. Evidently, the technical means were not very good ones. Titleserv managed to sidestep these restrictions and bring the software back into modifiable source form. They modified the program to keep it working a number of times and in a number of sometimes rather intrusive ways.

Second Circuit Judges Pierre Leval and Robert Katzmann sided with Titleserv. Leval said that courts should, “inquire into whether the party exercises sufficient incidents of ownership over a copy of the program to be sensibly considered the owner of the copy for purposes of §117(a).” Rightful possession is ownership.

Seems like a landmark case. If you have rightful possession of a program – then you own it and can freely modify it. This is huge!

If you’re really interested, here is another article and you can find the full case on Lexis and elsewhere.

3 thoughts on “A big win for Free Software”

  1. I don’t disagree that the outcome you describe would be a good thing, I just don’t think this case gets us very close to that.

    Basically, the fact that the program in question was developed specifically for Titleserv seems to play a big part in this case. I don’t think this will have any effect on mass market software.

  2. I think that the big deal is that the owner of the software – not the copyright holder – was able to modify the software to better suit their needs.

    This would be like someone reverse engineering and re-writing portions of Windows for their corprate use. This opens the door for a lot of things..

    "Mr Anderson – I see that you are using the Matrix 3.7 Printer Driver. It has been modifed to work under Linux. This is a breach of my copyright…Um…oh.. You own a Matrix 3.7 Printer. Sorry – you have the right to use a modified version. So sorry. I will just go and kill some hackers now."

    Basically – this is starting to limit the onerous licenese that certain companys (from Redmond for example) force people to agree to before you can use their software.

  3. It is pretty obvious that if the ‘owner’ was the copywrite owner, not the owner of a copy this provision would be meaningless. Generally speaking, a copywrite owner is free to make any modification he wants to a copy he owns.

    However, I don’t think this case has nearly as broad of an implication as they think it has. First, I would bet that some of the lattitude given in the modifications was that this was a custom developed program for the company and not generally commercially availible. In any copywrite dispute those factors would weigh heavily.

    Second, even if this was allowed as precident for modifications to ‘owned’ code, I would expect it would not provide any protection for supplying code to others people for modification to their own ‘owned’ code (let alone unowned code.)

Comments are closed.