Open source licenses *are* enforceable, FTW!

IANAL; I'm IT Blogwatch: in which the U.S. Court of Appeals confirms the legality of open source licenses under copyright law. Not to mention Chesscoaster...

Timothy B. Lee reports:

A federal appeals court has overruled a lower court ruling that, if sustained, would have severely hampered the enforceability of free software licenses. The lower court had found that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but was not copyright infringement. The difference matters because copyright law affords much stronger remedies against infringement than does contract law. If allowed to stand, the decision could have neutered popular copyleft licenses such as the GPL and Creative Commons licenses. The district court decision was overturned on Wednesday by the United States Court of Appeals for the Federal Circuit.

The copyright holder in the case is Robert Jacobsen, the lead developer of the Java Model Railroad Interface, a software package used by model railroad enthusiasts. A firm called Kamind Associates downloaded parts of Jacobsen's project, stripped out the copyright notice and other identifying information, and began redistributing the modified version without Jacobsen's approval. more

Pamela Jones groks the news:

The appeals court held that open source license conditions are enforceable as a copyright condition ... That matters a lot, because, as you've seen in the SCO saga, copyright law has teeth -- including injunctive relief -- that make policing infringements easier.


A lot of community folks saw it as important to appeal ... Creative Commons Corp, The Linux Foundation, The Open Source Initiative, Software Freedom Law Center ... The Perl Foundation, and the Wikimedia Foundation. The GPL is another example of a license that depends on copyright law for enforcement, because it's a copyright license, not a contract. Although this model train case is about a different license, because the US is a legal system based in part on case law, every decision matters. more

Jeff Neuburger explains why we should care:

There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling of the Court of Appeals ... easily goes to the top of the charts ... This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.

The central issue in the case is whether the conditions in the open source Artistic License limit the scope of the license (in which case a failure to comply with those conditions constitutes copyright infringement) or whether those conditions are in fact merely covenants.


In other words, the conditions of the Artistic License are "enforceable copyright conditions." This language will no doubt be frequently quoted in any discussion of open source licenses. more

Larry Lessig loves it:

Trust me, this is huge ... The Court of Appeals for the Federal Circuit [is] THE "IP" court in the US ... Important clarity and certainty by a critically important US Court ... A very important victory.


In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license. more

Andrew Updegrove boils it down:

That's really important with GPL and GPL licenses, which are in a very real sense a social contract that says "I will let you use this for free, so long as you give back to the community for the greater good."

So this, finally, is the big reason why you are hearing such rejoicing over the Jacobsen case. For the community, this wasn't about money at all, but about receiving the blessing of an important court that the foundations upon which the entire free and open source and Creative Commons philosophies are based can be suspended and sustain. A lot of the most sophisticated FOSS advocates did a lot of work writing "friend of the court" briefs to try to be sure that the Court really understood the facts, the law, and the consequences, and it paid off.

And that's made a lot of other people mighty happy. more

But Mike Gunderloy sounds a note of caution:

Now, this still doesn't amount to a full-blown test of the GPL. But it does mean that the theory underlying the GPL (and its descendants) has received an endorsement from one of the highest courts in the land - another move in favor of the cleverness of the folks who came up with it in the first place. more

And Mike Masnick also worries:

When I first read the decision, though, I was concerned that it seemed to contradict the recent ruling against Universal Music which stated that simply stamping "not for resale" on a CD doesn't give Universal additional rights above and beyond copyright. That ruling seemed like a good decision, too -- but in some ways it could be seen to conflict with this new decision.


Creative Commons seems to basically do the same thing that stamping "not for resale" does on CDs: it creates a separate license on top of copyright, and then tries to use copyright's defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren't enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.


Perhaps the only difference is in what the licenses seek to restrict. That is, in the Universal case, the proposed restrictions are greater than what copyright seeks to restrict (i.e., not allowing resale). In the Jacobsen case, the reserved rights are less than what copyright allows. more

Greg Sabino Mullane offers this explanatory vignette:

JMRI: we offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.

Kamind: **** you.

Court: Very well, forget the license, since you're obviously not electing to take the deal that JMRI offered. The terms of copyright law are now in force.

Kamind: May I create and sell derived works?

Court: Copyright law says you may not.

Kamind: oh, ****. more


And finally...

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Richi Jennings is an independent analyst/adviser/consultant, specializing in blogging, email, and spam. A 21 year, cross-functional IT veteran, he is also an analyst at Ferris Research. You can follow him on Twitter, pretend to be Richi's friend on Facebook, or just use boring old email:

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