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"?

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 Xforward

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

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"?

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?

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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.

EULA != Contract

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

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?

Clickwrap and Shrinkwrap are enforcible contracts

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 p

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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 t

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

IANAL, but Oracle has a solid case, just like Lexmark had a solid case against SCC for slavishly copying the copyrighted software from their toner unit chips. Yet SCC prevailed in a defense of copyright misuse.

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.

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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 biz

GPL seems clear enough.

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. Thes

Most parts EULAs are unenforceable

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

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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,

Artistic License is janky anyway.

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).

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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

Re:Artistic License is janky anyway.

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.

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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

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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.

W

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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 co

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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.
• Progr

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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

Re:Artistic License is janky anyway.

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.

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:Artistic License is janky anyway.

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.

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That's an interesting lump there, Daniel. MS we know is anti-OSS. Sony I can see being anti-OSS every other day. Disney? Have any substantiation?

Fwiw, I don't think you're trolling . . . . . much. =)

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Sure, they want to limit fair use so as to make more profit. Sure, they're another scummy media company (We call their studios "Mouscwitz" here in L.A.) But it doesn't follow that they're against OSS or even CC, and I haven't seen any proof of such. Howeve

Looking at all this legal mumbo-jumbo

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...

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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.

Re:Looking at all this legal mumbo-jumbo

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

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I disagree. Do you know how much those knives had to suffer, cutting up rather overweight medieval lords who usually died otherwise from obesity?

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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

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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 ra

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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 kin

Very Unclear Summary

Is the injunction in favor, or the decision?

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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.

Can't Tell

I can't tell from the summary if the good guys are winning -- or losing.

Which version?

Anyone know which version of the AL the JRMI guys are using?

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First of all, as another posted pointed out, the GPL hasn't been tested in a US court; more generally. it is not a magic bullet that guarantees your software will be Henceforth And Forever Free, and it would be nice if people would stop assuming it is. Se

Re:Use it or lose it...

the Artistic License is a nice middle ground between the GPL and the BSD

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".

it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.

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.

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and it certainly should be possible for authors to use it without being afraid that an ill-informed court will undercut their rights.

Well, from what's going on in this case, it's starting to look like the Artistic License is failing to protect those rig

Interesting as pertains to the story earlier about

OSS license proliferation. Bad licenses will perish, and hopefully people will be more careful when selecting a license. I've got a feeling that people are going to be reviewing their licenses now, in light of this ruling.

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First of all, as another posted pointed out, the GPL hasn't been tested in a US court

It depends on what you mean by "tested". It was most definitely at issue in Daniel Wallace v. Free Software Foundation, Inc. [groklaw.net], where the plaintiff sued the FSF for anticompetitive price fixing (and lost, and had to pay court costs.).

If I recall correctl

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iirc, it's still at issue in IBM's counter-claim against SCO, for continuing to distribute Linux in violation of the GPL. In the judge's big ruling in SCO v. Novell, he's effectively cratered all of SCO's cases. What remains to be seen is how deep of a hol

So..

So what if the courts decide it is not valid then the rest of US copyright law must/will be thrown out at the same time. This in itself is not a bad thing.

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The GPL has never been tested in a US court.

False [groklaw.net]

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That's not a test of the GPL, it's a test of representing yourself in a lawsuit and how badly you can do if you're not a lawyer.

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That, of course, depends on how broadly this precedent is applied.

Re:'license' vs 'contract' look it up on Groklaw

The difference between 'license' vs 'contract' has been explained on Groklaw [groklaw.net], several times. Please visit the site, look it up and get educated.

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Why should anyone rely on a single source for an explanation? Clearly, you don't have enough of a grasp on the explanation Groklaw provided to counter the GP; you are in effect saying "You're wrong because I heard something different elsewhere, go look up

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since you are the only layer who reads /. regularly
Now, just wait a damned minute there. I lay on a regular basis. It's one of the benefits of being married.