[Leaplist] Opensource court ruling.

[Bryan J. Smith]

Proskauer has probably the best dissection of it ...

http://newmedialaw.proskauer.com/2008/08/articles/copyright/federal-circuit-says-open-source-license-conditions-are-enforceable-as-copyright-condition/

Here's the big ticket item from the Federal Appeals Court:  

  "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."

A great number of leaches in the commercial software world like to claim that
open source developers have no right to enforce copyright because they will not
license or sue for monetary compensation.  While this is not entirely true for many
open source developers (those who dual-license, those who have other IP, etc...),
even in the case of a "pure" open source developer, the court is saying here,
"not so fast!"

Furthermore, it goes on to state ...  

  "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."

That existing calculations are already speculative!  So this is no different in the
eyes of common law on the matter anyway, killing that argument!

The court also addressed why removal of the copyright and other ownership
claims caused harm to the original copyright holder.  The court was very
complete.

But probably the biggest irony of all of this is that the Federal Appeals Court
may have never been involved if there was not a patent claim in the case.
So the party trying to exert patent clients on the open source developer
actually gave the open source developer a means to appeal the lower court
ruling in a Federal Appeals Court -- at least if I'm reading that correctly.




----- Original Message ----
From: Bryan J. Smith <b.j.smith at ieee.org>

It should also be noted that the courts are increasingly find that while not using
open source software under the terms of its license is a copyright violation, with
possible liability and damages due to the holder as a result, it will dismiss claims
of breach of contract.

In other words, it is increasingly clear that a software license is not a contract,
unless explicitly agreed to by both parties by each other (e.g., in writing or if
some verbal verification can be made between the explicit parties) like -- gasp --
and actual, negotiated contract.  This is likely to have real implications for "if you
break this package" and "click thru" licensing agreements.  I need to read up on
this common law and find out what rulings have found otherwise.

In a nutshell, the courts are applying "common sense," at least the higher courts
are.  Licenses are licenses, public or written, and you either agree to their terms
or you do not distribute, use, etc...  Contracts are another story though, and written
is always best.  ;)

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