Court Ruling Clouds Open Source Licensing

JosefAssad writes "In a decision centering around a question of a violation of the Artistic License, a San Francisco court has denied an injunction against Matthew Katzer in the favor of Robert Jacobsen of the JMRI project. Importantly, the decision makes the point that the Artistic License is a contract, an interpretation that the Free Software Foundation has been keen to avoid as a legal stance. The JMRI project has a page up with the legal background and developments."

Comments

Artistic License is janky anyway.

[Chandon Seldon]

People have been complaining about the clarity of the Artistic License for years. I don't see this having any significant effect on any other Free Software licenses, especially not the GPL (since the GPL is explicitly designed as a copyright license rather than as a contract).

Re:Artistic License is janky anyway.

[Chandon Seldon]

It's a matter of perception and how arguments are presented. If the Artistic License is successfully bundled in a category of licenses that include the GNU license in a legal argument, then it's possible this ruling could have an effect.

I don't think that's a terribly large risk. Unlike your average model train hobbyist or even programmer, lawyers and judges have quite a bit of legal training. You might be able to confuse them with technical details, but you're not going to get very far with "I know these two licenses have completely different terms, but they're really the same. These precedents from license A apply - you don't even need to read B.".

In this case, the reason for the ruling that the JRMI guys don't like is the lack of a termination clause in the Artistic license. They claim that this other guy violated the license terms (From Term 1: Copyright notices must be preserved), but even if that is true there still isn't a copyright violation - just a violation of a license term. If this were the GPL, any such violation would mean a license termination and therefore a copyright violation. With the Artistic License, all they get is a license dispute - which apparently doesn't get you immediate drastic court orders.

Re:Artistic License is janky anyway.

[Chandon Seldon]

they hate the whole idea of open source, and this decision is a powerful tool for them.

It's only a powerful PR tool, not a powerful legal tool.

Judges and Laywers think that legal text is pretty important - they're not going to treat a ruling on the specific interpretation and enforcement of one license as applying to some other license. And that's what this ruling is - a ruling on the specifics of correcting a potential (very arguable) violation of clause #1 of the Artistic license.

Re:Artistic License is janky anyway.

[Mjec]

They claim that this other guy violated the license terms (From Term 1: Copyright notices must be preserved), but even if that is true there still isn't a copyright violation - just a violation of a license term.

And thus the essence of the case.

JRMI claimed that the preservation of the copyright notice was a condition of the license such that there would be no license unless the notice was preserved. This means that any copying without the notice was outside the license and therefore was unlicensed reproduction, therefore copyright infringement. The judge held that in fact the copying was within the license but in breach of it - a breach of contract. Although it seems as though "the bad guys" did something wrong in each case, there is a difference in remedy.

If you are in breach of a contract the court will generally only grant damages - that is, the person has to pay you for the breach. If you are a copyright violator then the court will grant an injunction (specifically there is a presumption that an injunction is an appropriate remedy for copyright violation, whereas the presumption for contract is that an injunction is inappropriate). An injunction means you can tell the violator to stop what they're doing (or otherwise impose a legal requirement to act in a certain way or to not act in a certain way).

The reason this case is thought of as a bad thing is it seems to imply that any copying of anything released under a free software license (the distinctions between the GPL and the Artistic License are unimportant for this point) is ipso facto not copyright infringement though it may be a violation of the license. This ruling seems inconsistent with the Sun case where anything denoted as a "condition" it was considered would be sufficient to cause the behaviour to fall outside the license.

IANAL; I'm an Australian law student. The summary at Law & Life: Silicon Valley is excellent.

Re:Artistic License is janky anyway.

[Chandon Seldon]

The reason this case is thought of as a bad thing is it seems to imply that any copying of anything released under a free software license (the distinctions between the GPL and the Artistic License are unimportant for this point) is ipso facto not copyright infringement though it may be a violation of the license.

As far as I can tell, this is why the GPL has a termination clause - to turn license violations into copyright infringements. Since the Artistic License has no such clause, it would seem to me that this case implies nothing about a similar case with the GPL.

Looking at all this legal mumbo-jumbo

[waferhead]

Looking at all this legal mumbo-jumbo (going through the chronology etc) makes me realize there was actually some sort of upside to just having it out with knives...

Re:Looking at all this legal mumbo-jumbo

[bladesjester]

There's another upside to having it out with knives - people realize that there are actual consequences involved.

Re:Nuts. What does this do to other "contracts"?

[einhverfr]

IANAL, but I think the Oracle studies parts are probably quite challengable and probably difficult to enforce. The question is, how much money do you want to pay to prove that to a court?

Contract law does change a number of things, but it doesn't cause EULA's to vaporize. They are after all "End User License *Agreements*" where "Agreement" is used to imply a contract relationship.

I would also note that the GPLv3 has dropped all pretenses of being anything other than a contract. It doesn't state that it isn't a contract anymore, and certain clauses go well beyond copyright agreements (i.e. they give some people the right to manage terms of a copyright license independant of any copyrights of their own).

Personally, though IANAL, I think the differences are subtle but not altogether meaningless.

Re:Nuts. What does this do to other "contracts"?

[Chandon Seldon]

I would also note that the GPLv3 has dropped all pretenses of being anything other than a contract. It doesn't state that it isn't a contract anymore, and certain clauses go well beyond copyright agreements (i.e. they give some people the right to manage terms of a copyright license independant of any copyrights of their own).

The GPLv3 is still structured as a license (or a set of licenses, with the patent clauses) rather than as a contract. It still only triggers on things that would violate copyright law (modification and distribution) rather than use. What, specifically, would make you think otherwise?

Re:Use it or lose it...

[Daniel Dvorkin]

First of all, as another posted pointed out, the GPL hasn't been tested in a US court; more generally. it is not a magic bullet that guarantees your software will be Henceforth And Forever Free, and it would be nice if people would stop assuming it is. Second, not everyone wants their software to be "Free" in the way RMS does -- the Artistic License is a nice middle ground between the GPL and the BSD, it's the license under which one of the most popular pieces of software ever written (Perl) is released, and it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.

Re:Use it or lose it...

[Chandon Seldon]

the Artistic License is a nice middle ground between the GPL and the BSD

Is it? Does anyone even know what the actual results of the legal text are? As far as I can tell, it basically says "you can't modify unmodified copies" and "you can't sell this software, but you can charge money for it".

it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.

Licenses only do things that they actually say, not things that someone hopes they say. Licenses are one of the places where just trying isn't good enough - you have to get it right. The Artistic License got it wrong enough that even the Perl people aren't using it for anything new - they're using a revised version that's significantly more clear.

EULA != Contract

[Comboman]

Contract law does change a number of things, but it doesn't cause EULA's to vaporize. They are after all "End User License *Agreements*" where "Agreement" is used to imply a contract relationship.

A contract requires the informed consent of both parties entering the agreement. It has yet to be proven in a court of law that clicking an 'OK' button equates to informed consent, especially if the terms of the "agreement" are not presented prior to the purchase.

Re:EULA != Contract

[einhverfr]

From one EULA:

"Should you fail to register any of the evaluation software available through our web pages and continue to use it, be advised that a leather-winged demon of the night will tear itself, shrieking blood and fury, from the endless caverns of the nether
world, hurl itself into the darkness with a thirst for blood on its slavering fangs and search the very threads of time for the
throbbing of your heartbeat. Just thought you'd want to know that. Alchemy Mindworks accepts no responsibility for any loss,
damage or expense caused by leather-winged demons of the night, either."

What am I agreeing to here?

IANAL, but note that there are specific issues with EULAs also as distinct from negotiated contracts. In short, an individual who needs to run Windows is more or less forced to agree to an adhesion contract. There may also be questions of unconscionability, and other issues to consider.

Moral of the story: Consult a lawyer as to whether Alchemy Mindworks is really within their legal right to disclaim damages from leather-winged demons of the night* enforcing their contracts.

* Are these meant to refer to BSA agents?

Re:Nuts. What does this do to other "contracts"?

[einhverfr]

IANAL, but Oracle has a solid case, just like Lexmark had a solid case against SCC for slavishly copying the copyrighted software from their toner unit chips. Yet SCC prevailed in a defense of copyright misuse.

Oracle's case amounts to "You agreed to it." The attack on it might relate to questions of contracts of adhesion, procedural unconscionablily, competition law, or the like. In short, I think there is a good chance based on other contracts which have been voided that with enough time and effort, this clause might be vulnerable.

I believe that there are a number of bases relating to consumer contract law and copyright law which could be used to attack the Oracle clause. I have neither the money nor the time for such a fight though, and I would sooner pick a fight with some dual-license vendor over whether linking means derivation (because that equation is closer to my business than anything to do with Oracle).

As for your points regarding the GPL v3, I do agree that there are *serious* concerns that the license might be so far overreaching that it might be unenforceable on the basis of copyright misuse (particularly the implications of section 7 as relates to the Complete Corresponding Source Code). However, I do not see this being a viable method of attaching the GPL v2. One bit of analysis which makes similar claims is a bit of legal analysis mentioned in my latest journal entry (Why I Hesitate....).

The major arguments that I have seen relating to the GPL v2 are:

1) Section 2(b) could be seen as overreaching and pushing the limits of copyright law, laying claim to code that the author has no right to claim. This claim usually fails to mention at all the "mere aggregation" clause which would seem to include any work including the program other than a derivative work.

2) That the GPL is copyright misuse because it attacks the very system that copyright law was set up to protect. I would find this difficult to imagine in a court opinion because of the number of businesses which have successfully used the GPL to protect Thus the courts should not prevent businesses from deviating from standard licensing models just because they are at some point unusual.

Furthermore, the GPL v2 can be read easily as being fairly limited in scope (only those works where sufficient creative content is transferred could be derivative works, and mere dynamic linking would probably not apply. As such, the FSF's faq to the contrary, the scope of the effect of the GPL v2 may actually be quite limited. (This is not the case with the GPL v3.)

My most recent journal entry has a bunch of information on the GPL v2 and v3 as it relates to one of my projects.