September 20, 2004 5:10 PM PDT

Open-source programmer rebuts charge

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A programmer has rebutted an accusation that he contributed proprietary software to an open-source project called Mambo, while his accuser has moderated his legal threats.

Programmer Emir Sakic's rebuttal, posted Saturday, said the code he wrote for a company called Furthermore was derived from existing open-source code and thus could not be made proprietary. Also, he said the specific code written for Furthermore was not what he later contributed to the open-source project.

Brian Connolly, president of Furthermore, hired Sakic in 2003 to create a new feature for the open-source publishing program called Mambo, which Furthermore intends to use to start a business hosting newspapers' Web sites. The feature improved Mambo's ability to look like a newspaper page.

Connolly said the feature should have been Furthermore's proprietary software, never to be released to the open-source community. He accuses Sakic of giving that code to the Mambo project, while Sakic says it was separate code, written later, that he contributed to the open-source community.

Last week, Connolly said he would broadly distribute a letter warning that use of the new feature exposed the user to legal liability, because Furthermore's parent company, Literati Group, owns the copyright.

Open can of worms
Open-source software can be freely seen, modified and redistributed by anyone, whereas proprietary software must be kept secret unless its owner permits otherwise. The two approaches are colliding at times, as open-source software such as Linux proliferates.

"The lessons to be drawn from disputes like this revolve around the need for being as explicit as possible up front, so there's a clear understanding" about what open-source and proprietary software is involved in a project, said Brian Kelly, an intellectual-property attorney at Manatt, Phelps & Phillips. "Because open-source software is so popular, and source code is floating around, it's much easier for a programmer to leverage it."

Eben Moglen, the Columbia Law School professor and an attorney who represents the Free Software Foundation, declined to comment on the case's particulars. He did, however, offer some general observations.

When it comes to the General Public License (GPL)--the license that governs Mambo--it's possible for one party to write open-source software for another, giving that other party the copyright but not the right to make it proprietary, he said. Also, when two parties sign an agreement, miscommunication can happen, he added. "It's possible...for the parties to fail to have their minds meet."

Back and forth
Sakic said the issues under dispute are clearer than Connolly makes them out to be.

"Mr. Connolly still claims that Mambo contains the code developed for him when, in fact, it does not," Sakic said in his rebuttal. Also, he said, "there was no copyright agreement or contract signed."

In responding to Sakic, Connolly included an e-mail in which, he said, Sakic stated that "upon finished project, all copyright rights to code written by me will belong to literatigroup.com."

At the same time, though, Connolly took the advice of a neutral intermediary who advised against a plan to aggressively broadcast his claim this week. That intermediary is John Weathersby, executive director of the Open Source Software Institute, a nonprofit group that advocates use of the freely modifiable software.

"As a maturing industry, we need to figure out a way to process this," Weathersby said in an interview, adding that he's not taking sides. "I don't think it is necessarily the best thing in the world to have this kind of tiff in the press, but I do think it's important that we as an industry address these issues."

So far, Weathersby said, Mambo representatives haven't responded to his invitation to discuss the issue.

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GPL does not mean you have to distribute your proprietary code.
I think the crux of the issue is that Sakic claims that he rewrote the code for Mambo and hence, since Connolly has no patent on the Leaderboard functionality, Connolly has no claim on Mambo.

The idea that Connolly is required to redistribute his code because it was derived from GPL is nonsense. GPL only says that IF you want to distribute your code, you have to distribute it under the GPL license... however you can choose to keep it to yourself if you so choose.
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