US appeals court confirms that conditions of a liberal FLOSS license are enforceable

The United States Court of Appeals for the Federal Circuit (considered THE US court for patent, copyright, trademark and related law) ruled on August 13’th (08-1001.pdf , Jacobsen v. Katzer) that the FSF and OSI approved “Artistic License” was enforceable. This license is best known for its use by the PERL language.

Plaintiff Robert Jacobson was using this license for JMRI: A Java Model Railroad Interface, and Matthew Katzer operating as KAM Industries incorporated parts of the JMRI in their software without adhering to the conditions of the Artistic License. The license is conditional on attribution (the authors names, JMRI copyright notices, references to the COPYING file, an identifcation of SourceForge or JMRI as the original source of the definition files, and a description of how the files or computer code had been changed from the original source code). A district court had misinterpreted the license and suggested that the defendant didn’t need to adhere to the terms, requiring the case to go to the appeals court to be correctly interpreted.

Details about the case are offered on the JMRI website.

While the case has a small software patent component, the decision is one that everyone should read. It explains the basis of public licensing, and its wide use in software as well as by artists, authors, educators and scientists. It clarifies that these liberal/free/open licenses offer permission to do many things regulated by copyright, but come with conditions that must still be honoured if you do anything that would have required those permissions. If you don’t obey those conditions, then you didn’t get those required permissions, and thus are infringing copyright.

This is all pretty basic copyright law, but something that seems to require reminding to those who think that if you don’t charge money that you are “giving away” your work or possibly even your copyright and right to sue for infringement. This decision helps explain to people that money is not the only form of compensation for creators of copyrighted work, and that royalty payments are not the only condition that is enforceable in court.

A key point in the decision was that violation of the license lead to copyright infringement, not simply breach of contract. With copyright infringement there are strong remedies available with statutory damages, while with contract the court focuses on the amount of royalties and will not adequately protect those of us using royalty-free licensing. This also meant that the case was important to anyone using royalty-free licenses, not just this specific open source license, which is why the Creative Commons and other groups became involved. An amici curiae, or “friend of the court” brief, was argued for and submitted on behalf of Creative Commons Corp, The Linux Foundation, The Open Source Initiative, The Software Freedom Law Center, Yet Another Society (Perl Foundation), and The Wikimedia Foundation.

There have been many media articles about this case (Chloe Albanesius for PC Magazine, Maggie Shiels for BBC, Jeremy Kirk and Elizabeth Montalbano for IDG News Service, and many more listed on the JMRI website), discussing the importance of this case.

It should be obvious that this is important news (huge and important news, according to Lawrence Lessig) for the entire community of software and non-software authors who are dependant on the enforceability of royalty-free licenses for our livelihoods. My hope is that next time such a case will not have to go to a court at all, leave alone an appeals court, in order to realize that our business models and motivations for our creativity is just as valid (and enforceable) as those using the narrow monopoly-rent based business models.

Lawrence Lessig summarized the case as follows:

“In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.”

There is something interesting that those in the copyright debate should notice. Much of the focus of the debate surrounds activities carried out by private citizens alleged to be harmful to, or already infringing of, the rights of “copyright holders”. This case is typical of our community, and suggests a different dynamic.

We grant royalty-free permission for private citizens to do nearly everything they would want to do, which means they have no reason to infringe our rights. Our licenses are an ideal solution to reducing copyright infringement by citizens. Increased adoption of our licensing model will easily decrease infringing activities by the public and increase respect for copyright.

In this typical case it is a proprietary copyright holder — those who allege to be the victims in the debate — who was found guilty of copyright infringement. Politicians need to realize that when they try to lump all commercial “copyright holders” together they are including the worst copyright infringers.

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Jim Love, Chief Content Officer, IT World Canada

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