Copyright Battle Erupts over Open-Source Mambo Code

 
 
By Steven Vaughan-Nichols  |  Posted 2004-09-21
 
 
 

A copyright fight has erupted around the open-source Mambo content management system.

Brian Connolly, president of Furthermore Inc., an online publishing venture and a division of the Literati Group, has issued a letter to the open-source community that contends that his company owns the code behind Mambo Open Source.

"If you are presently using the software application Mambo OS in any release post October 3, 2003, you and your organization are potentially exposed to CIVIL LITIGATION and possibly CRIMINAL PROSECUTION," Connolly wrote in the letter.

He continued: "Our company, Furthermore, Inc., owns the code that enables the appearance and management of the "Lead Story Block" in Mambo. This code was taken without our permission by a lead member of the Mambo Development Team and put into Mambos core program. Our copyright was then attributed to Miro International. Here we are reiterating our ownership of the Intellectual Property and issue a formal WARNING that we are preparing to file legal action against users of this application."

Connolly, however, has not retained a law firm at this point to pursue the matter in court. Instead, he says that this announcement is the "beating of war drums" to let Mambo and Miro, the Australian company that says it is the copyright owner of Mambo, know that he will pursue this matter unless he receives satisfaction.

Specifically, Connolly said, "code was taken without our permission by a lead member of the Mambo Development Team and put into Mambos core program."

The Mambo Group vehemently disagrees.

In a statement, the Mambo Group said that it has "investigated these claims and believe[s] that: 1. The dispute relates to an alleged breach of contract between Mr. Connolly and the privately commissioned developer and is thus nothing to do with Mambo[;] 2. The code in question is a derived work of existing GPL [General Public License] code and therefore must remain GPL[; and] 3. By continuing to distribute Mambo on his site, Mr. Connolly has acknowledged that Mambo is GPL and Copyright Miro International Pty."

Further, Mambo claims that Connolly has never given them any proof of a contract with the programmer, Emir Sakic, a leading Mambo developer. Therefore, the Mambo Group takes "the view that these claims are frivolous and without substance."

Miro is also defending Sakic and his contribution of the code to Mambo.

"Our understanding is that programming alterations were made to a small part of a Mambo page to alter the way a news item was displayed," said Miro CEO Peter Lamont, in a prepared statement. "This basic concept was subsequently re-written and expanded upon by the developer and released back to the open source community. The developer has stated that there was no assignment of copyright and Connelly has yet to produce evidence to the contrary. The issue of the GPL is simple and well documented. Mambo is released under the GPL and alterations to part of Mambos functionality do not alter its license," he said.

That, however, may not be the point, said Philip H. Albert, a partner in the San Francisco-based law firm Townsend and Townsend and Crew LLP.

"This is, as described, not really an open-source case. Its more a matter of copyright infringement and contract law where it just so happens that the people being accused do open source," he said.

Albert added that in many cases, "If you can get both sides to agree on the facts of a problem then maybe the case goes away. Here, though we have two different stories.

"Lets assume that he wrote the code under contract. If, like most contractor programming contracts it had a work for hire clause, then depending on the exact terms of the agreement, then Mambo could be in copyright infringement."

The fact that the code Sakic was working on was a derivative of GPL code that should have been "GPLed," as Mambo claimed, "doesnt help Mambo any—its still copyright infringement," observed Albert.

Of course, if there was no agreement, or if there is and it has no "transfer of copyright" or "work for hire" clauses, this may all be moot.

Connolly, however, said he is frustrated that there is "no venue to settle this dispute." Thats why he took the step of going to the public with his claims against Mamba.

Albert disagrees with the move. Both as a contract dispute and as a copyright claim, Connolly can seek a remedy in either U.S. or Australian courts. It would not, however, be easy.

There is one thing that Albert and Connolly do agree on. And thats Alberts prediction: "Well see more of this style of dispute."

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