In effect, the ruling means that if people downloading Open Source software do not abide by the terms of the licence, then the licence is invalidated and the authors of the software can sue for infringement of copyright. This is the first real test of the validity of open source licences in the US courts.
The case revolves around code written by Robert Jacobsen, who runs Java Model Railway Interface (JMRI), a group that writes open source software for model railway hobbyists. Jacobsen accused Matthew Kater, a commercial software developer, of taking JMRI files, modifying them, and distributing them as his own. The terms of an Artistic License state that anyone using the free code must attribute the author and the source of the code, and highlight any changes they make.
The District Court for Northern California had earlier ruled that breaching the Artistic License was a contract violation, not a copyright infringement. But in last week’s ruling the Appeals Court, which is the leading intellectual property court in the US, said the Artistic License does, “put valid conditions on the use of licensed software.”
Actions outside these conditions are an infringement of copyright and authors of the software can bring an injunction to remedy the infringement.
On its website JMRI claims the ruling is a “ringing victory” both for itself and for the Open Source movement as a whole, saying, “When Kater took JMRI files, modified them, and distributed them as his own, he was violating copyright law and we can hold him accountable.”
Even lawyers worked for free
Although the ruling applies only to the Artistic License – which is far from being the most frequently used open source licence – other members of the community agreed with JMRI’s view of its significance. Underscoring the strength of feeling the case has aroused in the Open Source movement at least ten lawyers worked on the case for free.
The effect is to protect the ethos of the Open Source movement that everyone works for the common good. Software authors can control users’ rights to modify and distribute computer programs and files in the sense that anyone downloading open source software must make any changes visible. This enables the originator and others to find out about the uses to which the software is put, and thus gain information that can be used to advance future software releases.
Beyond its significance for software code, the ruling is expected to be relevant to the Creative Commons movement, which has drawn up licences that seek to protect copyright material on the Internet. In effect its licences allow people publishing information on the Internet to change copyright terms from “all rights reserved” to “some rights reserved”. The organisation claimed the ruling means that even though a copyright owner gives up some rights they don’t sacrifice the right to legal redress.
Creative Commons founder Lawrence Lessig said the theory of all free software, open source, and Creative Commons licences was upheld by the court, “When you violate the condition, the licence disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licences. Put precisely, whether or not they are also contracts, they are copyright licences which expire if you fail to abide by the terms of the licence.”
Lessig added the ruling provided “important clarity and certainty by a critically important US Court”.
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