Strong Court Ruling Upholds the Artistic License

dilute writes "The US Court of Appeals for the Federal Circuit (an authoritative court that normally deals with patent law), has issued a strong ruling (PDF) upholding the Artistic License in a copyright dispute between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under the Artistic License, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version." Read on for more, below. Dilute continues: "The lower court denied relief, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). In a strong ruling, the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted 'conditions' for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses." Reader ruphus13 point to Lawrence Lessig's commentary on the ruling; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.

Comments

Good for GPL but...

[Anonymous Coward]

; Lessig calls it "huge and important news," and notes that the reasoning is generalizable to the GPL and other Free software licenses, as well.

As well as most EULAs I suppose... or is a legal distinction made between license for personal use vs. license for redistribution?

Re:Good for GPL but...

[Sloppy]

the reasoning is generalizable to the GPL and other Free software licenses

As well as most EULAs I suppose...

Let's all hope. This could totally trash EULAs that some people have been attempting to enforce despite the other parties never taking the offer.

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

Apple: We offer you the terms of this license, if you are not satisfied with the rights and prohibitions of copyright law.
User: Fuck you.
Court: Very well, forget the license, since you're obviously not electing to take the deal that Apple offered. The terms of copyright law are now in force.
User: May I install the software I bought on my computer even if Apple didn't make the computer?
Court: Copyright law says you may.
Apple: oh, crap. we should have required signing a sales contract, as a condition for obtaining the software.
Blizzard: oh, crap.

Re:Good for GPL but...

[JoelKatz]

No, the District Court had it right. If your license says "you can copy this software provided you do X, Y, and Z", then you have a license to copy the software. No doing X, Y, and Z violates the license, but does not violate copyright law.

I can't make a license that says, "you can copy this software provided you don't pick your nose" and then sue you for copyright infringement for picking your nose.

Because lawsuits for copyright infringement have special powers (like statutory damages and a presumption of irreparable harm), we can't let people decide what's copyright infringement just by writing it in a license. Congress has to do that.

This ruling is very wrong and very troubling.

Re:Good for GPL but...

[Sloppy]

An interesting situation comes up when companies don't put any indication of an EULA on the packaging at all

Like this this? You and I are unusual people; yes, we read slashdot, follow trends in the software industry, and know that many, probably most, proprietary software packages come with some sort of statement about a license. But if Joe Sixpack looks at that page the above link points to, he would have no idea that a transaction between him and Amazon causes him to be bound by a contract with a third party. He would have no reason to even suspect it. By the time he receives the box, whether there's something printed on the outside or the inside, he has already paid Amazon.

And god help him if, when the box shows up on his doorstep, someone else (e.g. his kid) opens the box and installs it on his computer. With every other contract in every part of my life, there was never even a chance that someone else who doesn't have power-of-attorney (or good forgery skills), could perform an act that gets me into a contract unknowingly. And that's not surprising; it's fundamental to the concept of responsibility.

It gets even weirder to think that when the box arrives, Joe Sixpack owns the box and its contents, but as soon as he (or someone else!? see above paragraph) looks at it or opens it and becomes aware of the existence of some license, his ownership ceases and is replaced by licensing. I guess we should call that the Heisenberg uncertainty principle of software ownership.

If the courts assert the license is binding anyway (and the courts have to, since none of the legislatures have done so), they are making a very special case, where purchases of this one type of product (software), works unlike anything else in the realm commerce.

You have the right to return it if you don't accept the license agreement.

That right is asserted inside the license. Taking advantage of that, presumes that the unwitting buyer has already read and accepted the license. What if that's not the case?

Whether the store wants to make it easy is another matter. This is a case whether common practice differs from the legal requirement.

That just points out Yet Another paradoxical consequence of the ProCD court's misunderstanding. If users are bound by Apple's license when they buy software from a third party like Amazon, how did Amazon avoid being bound by the license when they bought the software from Apple? Professional resellers are even more informed about this subject than users; there's no way they can credibly assert ignorance of the contract, if users can't. The fact that "common practices" contradict a supposedly-binding requirement on the reseller, makes one question whether or not it's really a requirement.

Unconsenting/uninformed licensing raises too many paradoxes and weird situations that defy common sense and common law. It will eventually be overturned.

Which version?

[FilterMapReduce]

It is interesting that the Artistic License has passed a legal test of sorts, considering that it has been criticized as one of the more shoddily-written licenses out there—at least, version 1.0. I mean, look at this (from the "Definitions" section of 1.0):

"You" is you, if you're thinking about copying or distributing this Package.

That reads like someone tried to satirize the "legalese" present in most licenses rather than create a working license for themselves. Also, the license is automatically binding for anyone who is thinking about using the license? Compare to a Creative Commons license, where

"You" means an individual or entity exercising rights under this License...

You'd think programmers would know better than to let ambiguities like that by. (And incidentally, some people have similar concerns about the language in the GPL: it has a conspicuous lack of "legalese", which might make it easy to read, but also risks ambiguity popping up in a court case down the road.)

Re:Which version?

[TheRaven64]

Lawrence Lessig wrote versions 2 and 3 of the GPL, under advisement from RMS. Version 1, which had no input from Lessig, was a legal mess, and I don't know of any projects that have used it in the last decade.

Re:Finally, a court for the 21st century!

[shallot]

I agree, it was surprisingly detailed and coherent when talking about open source.

And it was also fairly amusing, the very verbose explanation of what the words "provided that" and "condition" mean, it sounded like a really fancy *plonk* to the district court :)

I was, however, surprised to see this in the footnote on page 7:

For example, the GNU General Public License, which is used for the Linux operating system, prohibits downstream users from charging for a license to the software. See Wallace v. IBM Corp., 467 F.3d 1104, 1105-06 (7th Cir. 2006).

I'm not sure what the court's exact definition of 'charging for a license' is there (and I don't have that Wallace v. IBM reference handy), but the GPL isn't actually supposed to prohibit distributors from charging, it just makes charging impractical because they have to provide the whole code as well.

Re:A rip-off artist gets his just reward

[_Sprocket_]

Reading the tortured history of this case was a real eye-opener. I hadn't really thought about the lengths that some people will apparently go to steal from the community, lie to regulators, and engage in what must have been a very expensive legal fight.

You've got to wonder what the motivation is. Is there really that much money in model train software? Or is this someone who has money to throw at whatever they want?

Dig around a bit... and you find some interesting things.

It seems Katzer and his parnter have made a sizable donation to the University of Oregon in the tune of "$1.25 million for computer labs, software and a technology endowment fund." That's a nice chunk of change to throw around. Where does it come from?

It's interesting to note that Katzer shows up in a number of roles from software development to a model train store. I suspect ongoing concerns are something along the lines of his LinkedIn profile:

Matt Katzerâ(TM)s Summary

KAMIND Associates delivers Microsoft solutions for small business customers since 1998. We solve your IT problems with the following solutions â" eCommerce sites for samll business using Microsoft Commerce Servers, Microsoft Small Business Server and Microsoft Retail Management System (POS) Solutions for specialty retailers. As part of our service model, we work with customers to develop an integrated IT services plan that solves the customers need and results in long term bottom line savings.

That seems pretty straight forward. But there's some other oddities out there. Take this blog entry of a Microsoft manager for example:

Matt Katzer runs an ISV called KAM Industries. They build software for the REALLY big railroads - railroad yard automation, engine automation, that kind of thing. Software that makes really big, heavy stuff move when and where itâ(TM)s supposed to. Matt told me that they also do similar stuff for model railroads â" HO, N, and O-scale stuff. They can completely automate, and simulate very complex setups.

If that werenâ(TM)t cool enough, Matt has built all this on top of Microsoft technologies - .NET Framework, the Compact Framework, WMI (okay, not REALLY MS tech, but it counts), XML, Windows Server 2003, etc.

Eh, what? Is this more than model trains or was Katzer simply exaggerating to impress?

Side note is a comment on the blog:

Matt Katzer was my first manager at Intel and the reason that I moved out to Oregon to work for Intel.

Good job, Federal Court of Appeals! Some comments:

[KWTm]

It was refreshing to read certain portions of the ruling. ... Good to know the court system can still work!

Agreed! I did read through the entire judgement --I figured I'd take my turn as the 0.1% of Slashdot to read the article so that the rest of Slashdot didn't-- and here are some comments.

This judge. Jeffrey S. White, was surprisingly familiar with free and open source licenses, mentioning the GNU GPL and the MIT OpenCourseware licenses. I wonder if he already had some familiarity, or whether it was the amici curiae from the Creative Commons Corporation and from the Wikimedia Foundation? Anyway, good job on all of them!

This judgement reminded me of why it was important to get advice from lawyers. Something that seemed plain-as-day to me turned out to be a focal point of debate. I've always assumed that, with a license like the GPL or other open source licenses, if you don't abide by the GPL, then the GPL doesn't apply --it's as if the GPL didn't exist-- and now you've violated copyright law. In this case (which is not GPL but the Artistic License, it wasn't so obvious: the defendants argued that the license itself freed the defendants from copyright law, and if the defendants then violated the license, then it was just a license violation (contract law) rather than copyright violation. This was how the defendants successfully argued at the Northern California District Court. Fortunately, the Appeals court overrode this, taking into account the spirit of the Artistic License and keeping in mind the other open source licenses. But it was a point I never thought would be questioned.

As the judgement points, the difference between license violation and copyright violation is especially important because, with license (contract) violation, you only get economic damages in return. If you write F/LOSS, then usually you can't really say that you've lost a million bucks because they stole your software. But this judge recognized the non-economic benefit of licensing under F/LOSS, and specifically said,

The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through
injunctive relief.

In other words, "money isn't everything".

If the law decided that the problem was license violation, then Microsoft could violate F/LOSS, and then toss it a few coins and say, "Sorry --here's some spare change for your troubles." With the law deciding that it's a matter of copyright and not contract violation, the judge can tell Microsoft, "I don't give a rat's ass how much money you have --stop what you're doing or you will be caned."

I'm sure the GNU GPL, having been thoroughly vetted by Eben Moglen, has clearer language than the Artistic License, which prevents such loopholes, but it's still good to see a judge that understands the issues. Judge White has remanded the case --I think this means that he's sent the case back to the District Court saying, "Go try this case again --you didn't do your homework properly the first time."

(Incidentally, was this the same judge that Slashdot covered a year or so ago where he lambasted the lawyers on both sides for not doing their homework? Name sounds familiar somehow, but I can't place it.)