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Court Ruling Clouds Open Source Licensing 143

Posted by kdawson from the artistic-license-only dept.
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."
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Court Ruling Clouds Open Source Licensing More

Court Ruling Clouds Open Source Licensing

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  • 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.

    • 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"? (Score:4, Interesting)

        by Chandon Seldon ( 43083 ) on Saturday August 25, 2007 @09:25PM (#20358301) Homepage

        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: (Score:3, Interesting)

          by ClosedSource ( 238333 )
          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.
        • The major thing is that previous versions of the GPL expressly limited copyright term changes to the preparation of derivative works. THe GPL v3 provides that additional permissions beyond the scope of the GPL v3 through the mere act of distribution:

          "Additional permissions" are terms that supplement the terms of this License by making exceptions from one or more of its conditions. Additional permissions that are applicable to the entire Program shall be treated as though they were included in this License, to the extent that they are valid under applicable law. If additional permissions apply only to part of the Program, that part may be used separately under those permissions, but the entire Program remains governed by this License without regard to the additional permissions.

          When you convey a copy of a covered work, you may at your option remove any additional permissions from that copy, or from any part of it. (Additional permissions may be written to require their own removal in certain cases when you modify the work.) You may place additional permissions on material, added by you to a covered work, for which you have or can give appropriate copyright permission.

      • EULA != Contract (Score:4, Interesting)

        by Comboman ( 895500 ) on Saturday August 25, 2007 @11:29PM (#20359107)
        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: (Score:2)

          by alienw ( 585907 )
          You are quite wrong. There are several cases where courts have upheld such EULAs. Being that it is always necessary to make a copy of a program (at least in RAM) in order to use it, a EULA of some sort is always required.

          • Re: (Score:2, Insightful)

            by EvanED ( 569694 )
            Being that it is always necessary to make a copy of a program (at least in RAM) in order to use it, a EULA of some sort is always required.

            No offense, but you're full of crap. That sort of copying is not infringing. 17 USC 117:

            (a) Making of Additional Copy or Adaptation by Owner of Copy.-- Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

            (1) t

          • Copying it into RAM is allowed by the US Copyright Act, I think, but IANAL.

            [I]t is not an infringement for the owner of a copy of a computer program to make or authorize the making
            of another copy or adaptation of that computer program provided:
            (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer
            program in conjunction with a machine and that it is used in no other manner . . . .

            The issue is that these appear to be adhesion contracts which have a special set of rules attached. But they are contracts nonetheless and have been upheld as such by several courts, I believe (but again IANAL).

          • Re: (Score:3, Interesting)

            by cpt kangarooski ( 3773 )
            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
            • I believe that there are good economic reasons in a proprietary software development company to use software licensing. The big issue is this: Software development is expensive. In order to recoup costs associated, one must find some way to spread the cost around.

              When you publish books, the publication is restricted to those who have appropriate copyright permissions. These can then charge enough to compensate the author for the cost of writing, but not so much as to remove the books from the market.
              • The big issue is this: Software development is expensive. In order to recoup costs associated, one must find some way to spread the cost around. ... [W]hen you publish software, it is desirable to be able to distribute the software in such a way as to distribute the cost of development among the users in a fair and equitable way. Sofware licensing accomplishes this.

                That doesn't really explain anything. All I'm saying is that when a publisher distributes software to end users who will not do anything with th
                • The problem is this (IANAL):

                  You have the "First Sale Doctrine."

                  Under it, copyright law does not apply to resale of copyrighted works. Only the initial sale.

                  Current US Copyright law preserves the right to install and use software as distinct from copying it. Thus, although it is a contract violation, it is arguably beyond the scope of US copyright law per se to install a single copy of software on multiple computers, possibly by different owners, as long as the medium changes ownership on each sale. (I.e.
                  • Thus, although it is a contract violation, it is arguably beyond the scope of US copyright law per se to install a single copy of software on multiple computers, possibly by different owners, as long as the medium changes ownership on each sale. (I.e. I install it on my machine, sell you the disk....). EULA's are designed to prevent this poblem.

                    No, that's actually infringing, right there. Remember, only the owner of a copy of a program is able to make non-infringing copies and adaptations, including into RA
                    • Good point.

                      But here is a counter-point.

                      Under a simple copyright scheme, whether I connect 1 user or 500 users to a server, I pay the same amount. Since server software has far fewer sales than client software, the little guy pays more than his fair share for use, while the big guy pays less. I would argue that even with things like site licenses, and the like, the little guy still pays less than he/she might if everyone paid the same amount per copy of the system.

                      As much as I hate CALs, I think they serve
        • 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: (Score:2)

            by dodobh ( 65811 )
            * Are these meant to refer to BSA agents?

            Politicians.
        • 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.

          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. ... Many courts
          • IANAL, but I generally agree with your assessment as far as you take it. But are they as enforceable as negotiated contracts? Are they subject to ductrines of adhesion? Are they more limited than might appear in your discussion?

            For example, if I negotiate a contract with you and it has an arbitrarion clause which we both agree to, is that different than an adhesion contract relating to a service or product where there is no possibility of negotiation?
            • For example, if I negotiate a contract with you and it has an arbitrarion clause which we both agree to, is that different than an adhesion contract relating to a service or product where there is no possibility of negotiation?

              The textbook that I referred to seems to indicate that unconscionable terms are a bigger issue for adhesion contracts, a power and sophistication imbalance often exist. The issue of arbitration is used as an example, in the following case the contract stated that both parties must
              • Back to my original point (IANAL). I suspect a clause in an adhesion contract which says something to the effect that "you may not publish any performance comparisons between our product and others" seems suspect on the surface. Whether or not any of a number of doctrines may be used to attack such a contract provision is not something I can clearly answer myself. However, it does seem likely to me that such a clause could be attacked because (meaning this is the red flag that I see) it seems to restrain
                • "you may not publish any performance comparisons between our product and others" seems suspect on the surface. ... However, it does seem likely to me that such a clause could be attacked because (meaning this is the red flag that I see) it seems to restrain a user's behavior beyond ways which are reasonable in a free market, ...

                  Looking at the factors that the courts consider:
                  - Acts that have no legitimate business purpose.
                  In the context of pre-release, preventing comparisons serves a valid business pu
                  • This is an interesting discussion. However, I note (again, IANAL):

                    Acts that have no legitimate business purpose.
                    In the context of pre-release, preventing comparisons serves a valid business purpose. Engineering samples, beta, etc may not properly represent the finished product. In general, preventing comparisons should be perfectly valid if there is "consideration", if the customer gets something in return. For example, special access to info and products. It is perfectly valid for a contract to restrict the flow of information.[emphasis mine]

                    I would agree that such clauses are not clearly prohibited in your list of criteria, but this one is arguable at least by your post. For example, in this case, you are dealing with a large public release, and it is a condition of access to the basic product of the company that they don't publish performance comparisons. In short your specific examples don't apply to this one.

                    I do a lot of db work in the FOSS world. I could see some addit

    • Hrm. What's suddenly very unclear here is the difference between a 'license' and a 'contract'. I'm fairly clear on what constitutes a contract: exchange of consideration and all that. A license, however, seems to be very different - it's almost like a bizarre form of contract, where party A will let party B behave in some way given certain conditions, but without an exchange of consideration. The odd thing is that I'm thinking (again, this is kind of thinking out loud here) it appears that there is some i

      • What's suddenly very unclear here is the difference between a 'license' and a 'contract'.

        The terminology is meaningless.

        You can call it anything you want, but that does not change what the GPL or any other license says and what that's based on. These things are based on copyright, where the author alone has the right to publish works. That power must be absolute to be worth anything. Copyleft licenses generously give people that right as long as they agree to a few simple conditions. People who re

        • Re: (Score:2)

          by alienw ( 585907 )
          Yes, but in this case the work was licensed under the Artistic "license". There is a reason nobody in their right mind uses that license: it is extremely poorly written. It also allows just about anything to be done with the code. The court basically said that it isn't copyright infringement, since the requirement to preserve the copyright notice does not really limit the scope of the license, but rather imposes an additional requirement onto the licensee. Since no monetary damages can be proven here, a
    • For the most part, EULAs are divided in to parts that explain rights or restrictions that already exist or try and take away rights they can't. Thus it usually is a case of either something that can be enforced, but only because there's existing law about it, or something that is useless. The main reason companies do EULAs is to have a tool to try to scare people in to doing what they want. It isn't as though they are actually enforceable in court. Clicking "yes" isn't a legal agreement to a contract, and c

  • Artistic License is janky anyway. (Score:5, Informative)

    by Chandon Seldon ( 43083 ) on Saturday August 25, 2007 @08:35PM (#20358077) Homepage

    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).

    • I think that you are correct, mostly. 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.

      The law is as influenced by politics and perception as are the more wild and woolly arenas of the legislative and executive branches. It's just that the influence is a lot more obtuse and subtle. The kind of perception shift involve

      • Re:Artistic License is janky anyway. (Score:5, Insightful)

        by Chandon Seldon ( 43083 ) on Saturday August 25, 2007 @09:19PM (#20358265) Homepage

        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.

        • 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.

          That's the scary part; how did the SCO trial carry on for so long if that were the case? SCO was *the* most shorted stock on the exchanges for quite a long time--they never had a case--and yet the legal system let them tie things up for years and years.
          • The SCO legal matters have carried on (and continue to carry on) because they are presumed to have a case until proven otherwise in court. Whether or not the stock on a company is being shorted during a legal proceeding has not bearing on that proceeding.

            What exactly was it that you found "tied up" by the various SCO cases? Linux and OSS adoption briefly slowed until people got a sense that SCO was all hat and no cattle. Bosses that didn't want and don't want to adopt OSS would have found another excuse. We
        • I don't know if the GPL (either versions) are any different with the respect to termination.

          I kmow a few well qualified legal minds who have told me that you could accept the GPL and fail to adhere to it's terms and it would be a license dispute until a copyright holder specifically revoked your ability to use the software. Something like forgetting to distribute the source or thinking it was covered by some upstream provider and not distributing it would necessarily mean a copyright violation, at that poin

          • As I understand it, the way it's supposed to work with GPLv2 is like this:

            • Violator distributes Programmer's software in violation of the GPL.
            • Programmer sues him for copyright infringement.
            • Violator: Wait a second, I've got a license under the GPL.
            • Programmer: You accepted the GPL? If so, it immediately terminated due to violation X. So you're violating my copyright in any case.

            At that point, the violator has three options:

            • Argue that he didn't violate the GPL, in which case the copyright holder would

            • The GPLv3 is slightly different, in that the copyright holder must explicitly notify the violator of the license termination no more than 60 days after the violation has ceased. That just adds a step for the copyright holder right before "sue for copyright infringement".

              Apparently I'm wrong. The GPLv3 acts precisely the same as the GPLv2 - it just provides a way for violators who cease violation to have their licenses re-instated automatically *unless* they have been notified by the copyright holder.

            • Here is the thing. If you say i can do something and I am under the impression I have done that. Then nothing has terminated and copyright hasn't been violated until you prove otherwise. So what you have to prove is that I broke the terms of the contract in order to invalidate the license and after the license is invalidated then copyright comes into play.

              If you accept any license and fail to live up to the details of the license, it is contractual up to that point. There has to be a step in which you are a

              • If you accept any license and fail to live up to the details of the license, it is contractual up to that point. There has to be a step in which you are aware that the license has been removed. This cannot be automatic if you think you are fulfilling it.

                If there is an active copyright infringement suit, as in my example, having a license is simply a defense against copyright infringement. Having a license that auto-terminates works fine - it's simply up to the court to determine if A.) the defendant is in

        • Re:Artistic License is janky anyway. (Score:5, Interesting)

          by Mjec ( 666932 ) on Saturday August 25, 2007 @10:59PM (#20358877) Homepage Journal

          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.

          • Re:Artistic License is janky anyway. (Score:5, Informative)

            by Chandon Seldon ( 43083 ) on Saturday August 25, 2007 @11:16PM (#20359011) Homepage

            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.

            • Re: (Score:2)

              by Mjec ( 666932 )

              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.

              This is a valid point. I'm not sure of the situation in the USA but in Australia there is an implicit termination upon breach of a condition (well, there's a right to termination that would probably be impliedly exercised by the nature of the license).

    • Re: (Score:2)

      by bwt ( 68845 )
      I agree. If you read the Aug 17 decision the relevent part is:

      The condition that the user insert a prominent notice of attribution does not limit the scope of
      the license. Rather, Defendants' alleged violation of the conditions of the license may have
      constituted a breach of the nonexclusive license, but does not create liability for copyright
      infringement where it would not otherwise exist.

      This is astoundingly bad legal reasoning. The license states "You may make and give away verbatim copies of the source fo

  • 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...

    • It certainly seems like that conflict resolution mechanism might more frequently lead to desirable results. That is, of course, presupposing that the winner is largely selected by random chance, which is a pretty big assumption I'll admit.

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

      • There's another upside to having it out with knives - people realize that there are actual consequences involved.
        That goes well with your sig.
        • Believe it or not, I generally try to resolve things without resorting to any kind of violence. In fact, I tend to be the mediator and voice of reason in whatever group I happen to find myself.

          While I am perfectly capable of *really* hurting someone, I'd really rather everyone just be decent to each other. It makes life a lot more plesant.

          Part of the problem with a lot of people, I think, is that they don't feel any responsibility for their actions because there are generally no really serious consequence
      • Most often immediately after one person or the other gets fatally stabbed.
        • Actually for the people involved, it happens quite a bit before that. At the latest, when the other guy comes at you with a knife.

    • Re: (Score:2)

      by jd ( 1658 )
      I disagree. Do you know how much those knives had to suffer, cutting up rather overweight medieval lords who usually died otherwise from obesity?
      • I know your making a joke but did you know that you don't die from obesity? It is some condition aggravated by the obesity. It is actually possible for obese people to be in better medical condition then regular weight people too. Although that is somewhat rare in the sense or stories that sticks out to us.

        • Right, and nobody dies from HIV either, but that doesn't stop the colloquialism "he died of AIDS" from being a useful and descriptive term.

    • Re: (Score:2)

      by dcapel ( 913969 )
      Upside of knives: Simple, final.

      Downside of knives: The world would be controlled by physical strength, scientists and engineers (especially computer geeks) would be at a sever disadvantage in culture and law, and sports and physical attributes would be raised far above intelligence in societal worth.

      Wait....
      • Downside of knives: The world would be controlled by physical strength, scientists and engineers (especially computer geeks) would be at a sever disadvantage in culture and law

        Sorry, but you're really wrong on that one. Knife fighting, and indeed most kinds of fighting, does not favor the stronger person. The victor is generally the one who finds an opening and exploits it - something that is generally better done by the more agile and quicker combatant.

        You have three general groups of people when it come
      • :-)

        I was actually thinking knives would be more efficient overall.. Think cost to society.

        Look at all those motions, imagine what all that lawyering up costs us all, (Inclucing actual costs of running the court system)
      • scientists and engineers (especially computer geeks) would be at a sever disadvantage in culture and law, and sports and physical attributes would be raised far above intelligence in societal worth.

        This is different from the current situation how?

  • Is the injunction in favor, or the decision?

    • Re: (Score:2)

      by glwtta ( 532858 )
      Is the injunction in favor, or the decision?

      The injunction is (or was to be) in favor of the "good guys", not the decision. I hope the license text is clearer than that summary, though it's not looking that way.
  • I can't tell from the summary if the good guys are winning -- or losing.
  • Anyone know which version of the AL the JRMI guys are using?

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