Open Source Licenses: Copyright or Contract Law?

We've had one of our first interesting rulings on an open source license violation that if upheld, could have interesting ramifications to the open source industry. Whether good or bad, it depends on where you sit and what you expect to gain or restrict through an open source license.

Robert Jacobsen, member (and I assume contributor) to the Java Module Railroad Interface Project, sued Matthew Katzer of Kamind Associates for violating federal copyright law, in this case the Artistic License. Jacobsen failed to include the notices specified in the license.

What's interesting here is not whether Jacobsen was guilty of infringing on the license but the remedy, and possible precedence set for other copyright based licenses (such as the GPL.)

There are two important aspects of the judge's rulings. Below are two excerpts from Kevin Fayle of REG Developer (he put it very well, so I'll let him summarize it).

• The court held that Jacobsen had implicitly promised not to sue for copyright infringement by distributing the source code under a nonexclusive license.
• The license was subject to certain conditions - which the defendants may have violated - but any transgression was a breach of contract, not a copyright violation, according to the court.

There's a lot more to the story so if you want more info/background, here's JMRI's history of events.

Net-Net: If software is distributed under a non-exclusive license that is copyright-based, then violating the terms of the license is a contractual issue, not a copyright issue. In this case an injunction was denied because copyright law was deemed not to be the governing law related to the stipulation in the license that notifications be included with the software. Jacobsen is left with seeking monetary remedies but his status as the copyright holder does not allow him to prevent Jacobsen from further distributing the software.

One thing that has clouded the GPL, and why there isn't much case law around it, is it's always been believed that copyright law governed the license. Now that doesn't look so cut and dry. Many have been "afraid" to be the guinea pig and find out what the courts would have to say about a copyright-based software license. Without any precedence we've been left to rely on the copyright holder's interpretation and enforcement, a lot of fuzzy and conflicting legal opinions, and zealous discussions on forums, email lists and blogs.

Now I'm no lawyer, but I did stay in a Holiday Inn last night, so you'll have to take my reading of this with a big caveat. (It's certainly not anything close to what you'd call sound legal advice, so shame on you if you take it that way.) Here are some thoughts on the pro's and con's of this ruling, should it stand up over time through the test of the legal process:

Pro

• Clear enforcement and remedy: copyright based licenses work just like any other license. Contract law applies and everyone generally knows the paths to enforcement that are available. It's much more clear for the vendor, user and abuser.
• Open source end users would be more at ease, and so would their lawyers. Copyright law is much less of an issue. Normal contract law applies and lawyers know how to interpret software licenses.
• Less fear of being the guinea pig in the court system. Unless we see a rash of obscure challenges, ambulance chasers, etc., trying to argue some nit or fine point of copyright law, everyone will have a better understanding of the license and its correct application.

Con

• Confusion in the open source community. Are contributors' contributions protected and licensed in the ways they expected? If not, then license would need adjusting and I don't think any of use want to go through a GPLv4 process anytime soon.
• If it ain't in the license, it doesn't apply. Copyright holders wouldn't be able to argue on their email lists or forums that the GPL means whatever they want it to just because they are the copyright holder. It makes the license more black and white (as much as a legal document can) than the current environment of "interpretation by copyright holder".
• Would the GPL still provide the benefits intended by it's creators? If not, why not just use a non-copyright based license.

It's early in the life or death of this court ruling so we'll have to see what happens through the legal process. I'm sure my interpretation of events will evolve and change over time as this plays out. For the most part, I think this kind of a ruling will benefit everyone as it takes a lot of the copyright mystery out of the equation, making it more clear for everyone how to interpret many open source licenses.

I'm a big supporter of the GPL and many other open source type licenses - they are a great innovation for our industry, but the lack of understanding around interpretation and enforcement has led to a confusing array of uses, abuses and FUD about open source licenses. Anytime we can add more clarity it is better for everyone. I look forward to seeing how all this plays out.

UPDATE: Slashdotters had a bit to say on the subject.