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Good news out of the Court of Appeals for the Federal Circuit yesterday—the court ruled that a failure to meet the conditions of a free / open source license was an infringement of copyright. While defendants argued that the conditions of the license (that the author be credited and that modifications to the original be noted) were separate agreements that were at most breaches of contract, the court found that violating these conditions meant that the author's copyrights had been infringed.
Free and open source licenses are ways for authors and other creators of copyrightable works to distribute their works openly, while still retaining some rights over the work. For instance, artists who wish to let others distribute their works freely, but want to be credited, can publish their works under a Creative Commons Attribution license.
Coders can also take advantage of free and open source licenses to let their programs be used and modified freely, while ensuring that these improvements and modifications, made by others, will be available to all for further improvement and scrutiny.
In this case, programmer Robert Jacobsen wrote software, called JMRI, that let users program model railroad systems from their PCs. He published this software online via SourceForge, which serves as a hub and incubator site for free and open source software. The program was published under the "Artistic License," which allows anyone to use the software, and also allows anyone to modify the software, so long as when they distribute modified software, they follow certain conditions. Among those conditions are that the original creator is attributed, and that the modified version includes notes showing how it has been modified from the original.
Defendants Matthew Katzer and Kamind Associates allegedly used parts of Jacobsen's software in creating their own product, but without crediting Jacobsen, including the JMRI copyright licenses and notices, or including a description of how their version of the software differed from JMRI. In their defense, they noted that the Artistic License attached to JMRI granted them the ability to use and modify the software. The portions of the license that required attribution and documentation of the modifications, they argued, were separate contractual agreements that had nothing to do with whether or not their could modify and distribute the modified software.
The appeals court disagreed, saying that these conditions of the license were what prevented their distribution and creation of derivative works from being infringing. Thus, the license was enforceable under copyright law.
Since all free and open source licenses require this sort of conditioning in order to be enforceable, this represents a strong endorsement of the model, showing that creators can rely upon the licenses to protect their rights while granting powerful rights to users.
For those of you who have been following this blog, the distinction between breach of contract and copyright infringement might seem familiar—it's a notable component of our argument in the Blizzard / MDY case. So how can I justify supporting the strength of a flexible license enforced by the weight of copyright law in Jacobsen, while railing against using copyright to enforce a license agreement in MDY? I'll cover that in the next post.