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May 7, 2008: Copyright Appeal Hearing

On May 7, 2008, we argued our copyright appeal at the Federal Circuit in Washington DC. Each side had been given 15 minutes to argue their case. Chief Judge Michel, Judge Prost, and a visiting judge, Judge Hochberg, were on the panel.

We were first up. The three Judges asked about whether anything Katzer did could have formed a contract, what we expected from him under our license, and what effect their ruling would have on further proceedings in the district court. They seemed particularly interested in the Open Source development model, and whether Katzer's arguments meant that there was no way to hold him to account for his infringement of the copyrights.

When it was Katzer's attorney's turn, they asked him why Katzer didn't just accept an injunction against using the JMRI files, since he claimed to no longer use them and that he had no future use for them. He had to admit that the District Court Judge had ruled that the infringement could recur. They next asked why Katzer didn't just comply with one of the many options within the license for using the material. In replying to this, Katzer's attorney claimed that Katzer had downloaded the decoder definitions as part of his interest in furthering industry standards, and that he thought he could use them as he wished. Complying with the license "never crossed his mind". They also quizzed him about whether Katzer knew about the terms, and how an author would go about protecting his rights if Katzer's arguments are accepted. One Judge wondered whether Katzer was arguing for "Too bad, so sad", and asked whether this would make it impossible to protect Open Source development under copyright.

It was a very interesting session, with a lot of thoughtful questions. It was clear that the Judges had already carefully considered the issues. There were enough questions that both sides were given several minutes past the fifteen minutes allotted. The sound recording, approximately 40 minutes, is available here.

The next step will be the ruling from the Federal Circuit. There's no way to know precisely when that will be, but we'll post it here as soon as we get it.

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