A software developer, Robert Jacobsen, led a team that wrote a
program to allow model train enthusiasts to use their computers to
control their trains. The files for the program were made available
free of charge but subject to a licence, known as the Artistic
License 1.0.
Jacobson sued a commercial developer of train set software,
Matthew Katzer and Kamind Associates, because of their use of some
of the material from his software in its commercial product without
attribution and without documentation tracking changes.
Jacobsen claimed that this broke the conditions of the Artistic
License and was, therefore, copyright infringement.
A District Court ruling said the licence conditions had been
broken, but that this was a breach of contract, not copyright
infringement. It said that because the terms of the copyright
licence were so broad they could not be held to have been
breached.
The Court of Appeal has overturned that ruling, saying that the
terms of the licence were conditions of it and not just covenants
related to it, and the breaking of those conditions resulted in
copyright infringement.
"The heart of the argument on appeal concerns whether the terms
of the Artistic License are conditions of, or merely covenants to,
the copyright license," the ruling said. "Generally, a 'copyright
owner who grants a nonexclusive license to use his copyrighted
material waives his right to sue the licensee for copyright
infringement' and can sue only for breach of contract," it said,
quoting a case between Sun and Microsoft.
"If, however, a license is limited in scope and the licensee
acts outside the scope, the licensor can bring an action for
copyright infringement."
"Thus, if the terms of the Artistic License allegedly violated
are both covenants and conditions, they may serve to limit the
scope of the license and are governed by copyright law. If they are
merely covenants, by contrast, they are governed by contract law,"
it said. The Court said that the restrictions were conditions of
the licence and introduced the possibility of copyright
infringement.
Katzer and Kamind also argued that copyright could not be
infringed because it is an economic right, and could not have
protected a transaction in which no money changed hands. The Court
disagreed.
"The lack of money changing hands in open source licensing
should not be presumed to mean that there is no economic
consideration," said the ruling. "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," it said.
Open source licences are designed to allow for the free
distribution and modification of software but also to retain some
control over that process. Creators generally want to ensure that
their work is acknowledged, and that users are aware of what
changes a third party has subsequently made to the software
code.
The model is an alternative to traditional copyright and those
behind open source licences such as the Creative Commons licence
under which user-generated encyclopedia Wikipedia is published,
call the movement copyleft as opposed to copyright. They often
argue that the use of fewer intellectual property constraints
allows for more and faster creativity and productivity.
Stanford Law Professor Larry Lessig called it a very important
victory. "So for non-lawgeeks, this won't seem important," he wrote
on his
blog. "But trust me, this is huge."
Professor Lessig is the founder of Creative Commons.
"In non-technical terms, the Court has held that free licenses
such as the CC [Creative Commons] licenses set conditions (rather
than covenants) on the use of copyrighted work," he wrote. "When
you violate the condition, the license disappears, meaning you're
simply a copyright infringer. This is the theory of the GPL
[another widely used free software licence] and all CC licenses.
Put precisely, whether or not they are also contracts, they are
copyright licenses which expire if you fail to abide by the terms
of the license."
