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A Huge Win for Open Source Licenses

Hey remember when I used to talk about copyright?

Me neither.

Very interesting ruling from the U.S. Court of Appeals for the Federal Circuit in the case of Robert Jacobsen v. Matthew Katzer & Kamind Associates. Since I’ll presume not everyone shares my love of reading out of country judicial rulings (or pdf files) – here’s a brief summary for the copyright-interested:

Jacobsen manages an open source project called JMRI which is a series of tools for building model railroad controls. All of their works are released under an “open source” license (in this case the Artistic License – however if you’ve got even a passing familiarity with Creative Commons, The GPL, or their ilk… it’s similar). Parts of one of the JMRI’s programs (DecoderPro) was used by the defendants in a competing commercial product. While this isn’t a problem in and of itself under the Artistic License, the defendants didn’t follow any of the requirements of the license to take material from DecoderPro (such as giving credit to the JMRI team, maintaining JMRI copyright notices, making available notice of how the JMRI code was altered, and making the original unaltered program available to anyone who wanted a copy).

The legal question then becomes: Since the license would have allowed what the defendant was doing, does their violation constitute a breach of contract, or a copyright violation?

This is important as the types of damages one can seek for a “breach of contract” are significantly less than for a full-blown copyright infringement.

The importance to free/open source licenses was even greater than that – one of the complaints against the movement most often levied by critics is that if you voluntarily give up rights to something, it’s impossible to assert them again ever. For example, a certain website in the UK (which I won’t link) has taken to stealing some of our RocketAce videos, replacing the credit and URL graphics at the end and re-posting them as their own creations. They would likely argue that since we provide our videos for free, and encourage people to download, re-post, or even mash them up with new material… this is perfectly within their rights. However a condition of our license (actually the only real condition of our license) is that we remain credited as a creator. Just because we *may* allow something under certain conditions does using a free or open source license preclude us from full legal recourse if those conditions aren’t followed?

The first time this case was heard the district court in the U.S. ruled that it did concluding:

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.

Or basically “Yes they broke the agreement, but it doesn’t count as copyright infringement because if they hadn’t broken the agreement, it wouldn’t have been copyright infringement”. Thankfully the Court of Appeals (who are the definitive U.S. court for Patent disputes – but also have some jurisdiction over copyright) saw the matter quite differently (and, IMHO correctly):

Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. 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.

A tremendous win for the alternative copyright licensing movement. The court also gets bonus gold stars in my book for not only writing a very accessible ruling, but also doing a tremendous job explaining in lay-terms how releasing a work under a free or open license is not the same as abandoning economic valuation in one’s work:

There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate.

The commentary and debate has already begun – but this is a major development in establishing president when dealing with Open Source licenses, at least in the U.S.

[Edit 08/15 – Swapped the name of the plaintif and the defendant in one instance, thanks Horztango!]