David A. Wheeler's Blog

Thu, 14 Aug 2008

Free-Libre/Open Source Software (FLOSS) licenses legally enforceable - and more

The U.S. Court of Appeals for the Federal Circuit has ruled in Jacobsen v. Katzer (August 13, 2008) that Free-Libre/Open Source Software (FLOSS) licenses are legally enforceable. Specifically, it determined that in the U.S. disobeying a FLOSS license is copyright infringement (unless there are other arrangements), and not just a contract violation. This makes it much easier to enforce FLOSS licenses in the United States. It has some other very interesting things to say, too, as I show below.

Frankly, I thought this was a very obvious ruling; I find it bizarre that some people thought there was another possibility (and that this had to be appealed). After all, U.S. copyright law clearly says that the copyright holder can determine the conditions for (most) copying, and doing anything else (unless specially permitted by law) is copyright infringement. This ruling simply states that the law is what it says it is, and that FLOSS licenses are a perfectly valid set of conditions. This eliminates, in one stroke, the argument “is a license a contract or a license?” silliness. A license is, well, a license! I’ve thought it was quite obvious that a license is not a contract; Eben Moglen and Groklaw have both written articles on this that I find extremely persuasive. In some countries, this distinction may make no difference, but in the U.S. there is a big difference. As Andy Updegrove noted, “Under contract law, the remedy is monetary damages, which aren’t likely to amount to anything involving open-source software that is given away…”, but statutory damages (money awarded for a violation of law) “can be awarded for copyright infringement without requiring proof of monetary damages… people can recover attorney fees for copyright infringement cases… [and] most importantly for licenses such as the [GNU General Public License], it means that your rights to use the copyrighted work at all disappear”.

You can find more about the legal implications in Groklaw’s article on Jacobsen v. Katzer, the announcement on Jmri-legal-announce, and LinuxInsider. JMRI has a set of links to related articles.

The court also had many very interesting things to say about FLOSS. I suspect many will quote it because it’s an official U.S. court ruling that cuts to the essense of FLOSS licensing and why it is the way it is. Let me pull out a few interesting quotes; I have bolded some particularly interesting points:

“We consider here the ability of a copyright holder to dedicate certain work to free public use and yet enforce an ‘open source’ copyright license to control the future distribution and modification of that work… Public licenses, often referred to as ‘open source’ licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. Several types of public licenses have been designed to provide creators of copyrighted materials a means to protect and control their copyrights. Creative Commons, one of the amici curiae, provides free copyright licenses to allow parties to dedicate their works to the public or to license certain uses of their works while keeping some rights reserved.”

Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of Technology (‘MIT’) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.”

“Open Source software projects invite computer programmers from around the world to view software code and make changes and improvements to it. Through such collaboration, software programs can often be written and debugged faster and at lower cost than if the copyright holder were required to do all of the work independently. In exchange and in consideration for this collaborative work, the copyright holder permits users to copy, modify and distribute the software code subject to conditions that serve to protect downstream users and to keep the code accessible. By requiring that users copy and restate the license and attribution information, a copyright holder can ensure that recipients of the redistributed computer code know the identity of the owner as well as the scope of the license granted by the original owner. The Artistic License in this case also requires that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added or altered by another collaborator.

“Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. 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…. (Program creator ‘derived value from the distribution [under a public license] because he was able to improve his Software based on suggestions sent by end-users… . It is logical that as the Software improved, more end-users used his Software, thereby increasing [the programmer’s] recognition in his profession and the likelihood that the Software would be improved even further.’).”

“… The conditions set forth in the Artistic License are vital to enable the copyright holder to retain the ability to benefit from the work of downstream users. By requiring that users who modify or distribute the copyrighted material retain the reference to the original source files, downstream users are directed to Jacobsen=s website. Thus, downstream users know about the collaborative effort to improve and expand the SourceForge project once they learn of the ‘upstream’ project from a ‘downstream’ distribution, and they may join in that effort.”

“… Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the ‘unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright.’ 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.

“… The clear language of the Artistic License creates conditions to protect the economic rights at issue in the granting of a public license. These conditions govern the rights to modify and distribute the computer programs and files included in the downloadable software package. The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce. Through this controlled spread of information, the copyright holder gains creative collaborators to the open source project; by requiring that changes made by downstream users be visible to the copyright holder and others, the copyright holder learns about the uses for his software and gains others’ knowledge that can be used to advance future software releases.”

In short, this court ruling makes it clear that FLOSS licenses really are legally enforceable… so it’s safe for businesses to rely on them. It also makes a number of clear statements that FLOSS really does have economic value, even when money doesn’t change hands - a point I make in my article Free-Libre / Open Source Software (FLOSS) is Commercial Software.

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