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Re: Open source licenses upheld
From: |
rjack |
Subject: |
Re: Open source licenses upheld |
Date: |
Wed, 13 Aug 2008 19:00:43 -0400 |
User-agent: |
Thunderbird 2.0.0.16 (Windows/20080708) |
Hyman Rosen wrote:
The results of the JMRI appeal are in, and the court has held that
open source licenses, including the Artistic License, are valid
copyright limitations, and violations of those conditions provide
grounds for suing for infringement.
So there, rjack and Terekhov! :-)
<http://jmri.sourceforge.net/k/docket/cafc-pi-1/08-1001.pdf>
"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. 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."
Before RADER, SCHALL, and BRYSON, Circuit Judges:
"Although there is language in some cases that can be read to suggest that
copyright protection extends to all conduct that would violate the user’s
license, the decisions in those cases are not that broad. For example, in
S.O.S., Inc. v. Payday, Inc., the Ninth Circuit stated that a “licensee
infringes the owner’s copyright if its use exceeds the scope of its license.”
886 F.2d 1081, 1087 (9th Cir. 1989). In that case, however, it was clear that
the “use” the copyright owner was complaining about was the defendant’s “copying
and modification of the software.” Id. at 1085. Similarly in John G. Danielson,
Inc. v. Winchester-Conant Props., Inc., 322 F.3d 26, 41 (1st Cir. 2002), the
First Circuit noted that “[u]ses of the copyrighted work that stay within the
scope of a nonexclusive license are immunized from infringement suits.” Not only
did the court not state that “uses” that fall outside the scope of the license
would necessarily constitute a copyright violation, but the allegedly unlawful
“use” in that case was the copying of architectural plans. Id. at 32; see Data
Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1167 (1st Cir. 1994). In
light of their facts, those cases thus stand for the entirely unremarkable
principle that “uses” that violate a license agreement constitute copyright
infringement only when those uses would infringe in the absence of any license
agreement at all. ;Storage Technology Corp. v. Custom Hardware Engineering &
Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005).
VS.
Before MICHEL, Chief Judge, PROST, Circuit Judge, and HOCHBERG,* District Judge:
"The attribution and modification transparency requirements directly serve to
drive traffic to the open source incubation page and to inform downstream users
of the project, which is a significant economic goal of the copyright holder
that the law will enforce."; ROBERT JACOBSEN v. MATTHEW KATZER and KAMIND
ASSOCIATES, INC. (2808-1001; Fed Cir. 2008).
Two sets of three appellate judges from the Federal Circuit have managed to
reach unanimous and diametrically opposed conclusions as to what the "scope" of
a copyright license means. This ruling has no precedental value whatsoever.
Sincerely,
Rjack
"Facts are stubborn things; and whatever may be our wishes, our
inclinations, or the dictates of our passion, they cannot alter
the state of facts and evidence." -- John Adams, 'Argument in
Defense of the Soldiers in the Boston Massacre Trials,' December
1770