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."

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

[twitter]

So what does this do for EULA? Do all the obnoxious terms of use suddenly vaporize? Can people now publish Oracle studies? Can I now use Front Page to say bad things about M$? Can I now use Windoze under as many VMs as I want and serve it with Xforwarding or as a web service because, I'm not really making a copy and that's all that copyright halts? I can see all sorts of ways the non free software world will rue the day copyright was weakened.

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: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 [blogspot.com] is excellent.

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

[cpt kangarooski]

No, that's incorrect. While there have been some cases upholding EULAs, as well as some cases the other way, US copyright law is clear that if you own a copy of a computer program, then you can make copies and adaptations in order to use the program, and that you can make backup copies (of the program -- there's nothing about other types of works, e.g. movies on DVD). The relevant statute is 17 USC 117.

There is really no need for software licenses for ordinary end users, IMO, and no one I've ever talked to has come up with a reason why they'd be needed as opposed to just relying on the Copyright Act. In some circumstances, a license and contract would be useful, e.g. for developers who want to modify the program and distribute their version, or for site licensing. But as for just going to the store and getting a CD in a box, not so much.

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

[ClosedSource]

The fact that the terms of the GPL are triggered by copyright doesn't magically mean that it can't be viewed as a contract by a court.

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

[mr_mischief]

There's a popular idea that when anything on a public forum like Slashdot might be harmful to certain parties, this sort of sexual blather gets put in the thread so that porn and obscenity filters keep it out of many hands. Microsoft is the usual suspect, and the parent of the sex blather is questioning the effects on MS's EULA.

I'm not drawing any conclusions here, and I don't think anyone should at this point. It is an interesting theory, and this would be a prime example if it's true.