The recent ruling by the Court of Appeals for the Federal Circuit upholding the Artistic License has received a great deal of attention over the past few days as a major victory for the copyleft movement.
Though some may find it odd that the open source movement has been so quick to celebrate a ruling of infringement, it is indeed a major victory for all of those who release code underneath copyleft licenses including open source, Creative Commons, etc.
The news is not important so much because of what changes with the ruling, but because of what could have changed if the lower court ruling stood.
It is definitely a cause to celebrate, not because of what was won, but the problems that could have been lost.
Robert Jacobsen is the creator of the JAVA Model Railroad Interface (JMRI), a program that helps model train enthusiasts manage their setups with a computer. He has licensed his code under the Artistic License, which is considered an open source license by many as it allows broad reuse and copying of the code.
The problem arose when Kamind Associates, a software development company from Oregon, used a portion of the JRMI code without following the license. According to the suit, the company failed to include proper attribution, preserve copyright notices and otherwise comply with the terms set forth in the license.
Jacobsen sued the company and sought a preliminary injunction to stop the use of the code. However, the district court ruled that while the company had indeed violated the license, that they had only breached a “contract” with the plaintiff and were not liable for copyright infringement. Thus, the court denied the injunction.
This initially sent chills down the collective spine of the open source community. Copyleft licensing, from GPL to Creative Commons, has relied upon a violation of the license being copyright infringement. If it were a mere contract, the protections provided by these licenses could have been, in theory, greatly weakened.
Fortunately, the Appeals court reversed the lower court on this issue and ruled that failure to follow the licensing terms, in this case at least, did constitute a copyright infringement and, as such, sent the injunction back to the lower court with specific instructions to only evaluate the injunction on its other merits.
It was a major victory for open source, but it isn’t one that is mark great changes for Copyleft, it is more a matter of a disaster averted.
Why It Could Have Been Bad
The problem with contract law in this case is that it does not provide anywhere near the protections of copyright law. If the lower court ruling had stood, those who use copyleft licenses, including this site, may have been seriously hindered in protecting their work against abuse.
Consider the following limitations, both potential and theoretical:
- No Injunctions: As was shown in this case, you can not get a preliminary injunction to stop an infringement if it is declared a breach of contract.
- Less Damages: Where copyright law offers very high damage awards, especially in cases where the infringement is intentional, contract law offers much more limited awards.
- Limited Enforceability: Given the issues in enforcing certain clickwrap licenses, there could be questions if such a license would be enforceable at all.
- No Takedown Notices: Though one could still send DMCA notices, it is entirely foreseeable that a court could rule that, if abusing copyleft is not a copyright violation, that such notices are invalid and subject to penalty. That would make sending such notices very risky legally.
It is pretty easy to see what would have happened if the ruling had stood. Those of us that use copyleft licenses would have been forced to switch back to traditional copyright in order to have a reasonable level of protection of our work.
Simply put, if copyleft licenses and their violations had been viewed as a matter of contract law, the results would have been disastrous for the entire copyleft movement.
The next obvious question is “What Happens Now?” The answer is “Not much.”
Since very few people, if anyone, changed their licensing due to the lower court ruling, for the moment we can all go back to doing what we were doing. Most seemed comfortable that the district court’s ruling would be struck down and, now that it has been, there is not much that needs to change.
That being said, it is important for copyright holders, especially those that use copyleft, to follow these rulings closely as they could directly impact their rights.
Fortunately, this bullet was dodged. Let us hope that is a trend that continues.
Whenever I talk about Creative Commons licensing, the most common question I get is whether or not it has been tested in court.
But even though a Dutch court upheld Creative Commons years ago, that answer has not satisfied many. Most wanted a test in the United States and, though this is not it, it is a significant challenge to copyleft in general that seems to have been surmounted.
While there will still be other cases to track, this has gone a long way to ensuring that Creative Commons Licenses are enforceable to the fullest extent of the law.
This is good news, of that there is little doubt.