Court Ruling Clouds Open Source Licensing 143
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."
Artistic License is janky anyway. (Score:5, Informative)
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:Nuts. What does this do to other "contracts"? (Score:4, Informative)
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:Use it or lose it... (Score:4, Informative)
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".
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.
Re:'license' vs 'contract' look it up on Groklaw (Score:3, Informative)
Re:Use it or lose it... (Score:3, Informative)
False [groklaw.net]
Re:Artistic License is janky anyway. (Score:5, Informative)
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.
Re:Nuts. What does this do to other "contracts"? (Score:1, Informative)
Re:Nuts. What does this do to other "contracts"? (Score:4, Informative)
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.
Clickwrap and Shrinkwrap are enforcible contracts (Score:3, Informative)
Clickwrap and Shrinkwrap are enforcible contracts. From 2007, Beatty and Samuelson, Business Law and the Legal Environment: Standard Edition, 4th edition, Chapter 11 - Agreements, p. 265:
"Cyberlaw. Clickwraps and Shrinkwraps.
(8) ProCD, Inc. v. Zeidenbert, 86 F3d 1447 (7th Cir. 1996), is the leading case to enforce shrinkwrap agreements (and, by extension, clickwraps). Klocek v. Gateway, 104 F. Supp. 1332 (D. Kan, 2000) is one of the few cases to reject such contracts. Klocek, however, was dismissed for failure to reach the federal court $75,000 jurisdic tional level."
As you suggest submerged agreements are a problem, however making the terms visible before clicking is valid and clicking "I Agree" is valid. The following shows why the license is shown first on many download pages, or by installers, it corrects the "submerging" defect. And why "I Agree" rather than "OK" is used, it corrects the ambiguous defect. Not activating "I Agree" until after all of the agreement has scrolled by is a nice addition. P. 266:
"Specht v. Netscape Communications Corporation", 306 F.3d 17, Second Circuit Court of Appeals, 2002.
Apologies for the typos.