The U.S. Court of Appeal for the Federal Circuit has issued a wondrously clear and unambiguous opinion (pdf) that supports the enforceability of open source and public licenses. It is great news for user and contributor communities, and their lawyers. Nothing that I’ve seen posted so far actually quotes any of the juicy parts of the opinion, so I’ve included some of that.
The Back Story:
The software in the case is licensed under Artistic License 1.0, which was written by Larry Wall in the late 80s. The defendants allegedly copied the software into their own products without complying with key Artistic License requirements—they did not include the original authors’ names, copyright notices, references to the COPYING file, information about sources of the original files (e.g., SourceForge), or a description of how the original files had been modified.
The plaintiff asked the court for an injunction prohibiting distribution of the defendants’ products, arguing that by violating these license conditions, the defendants violated the copyright in the software.
In a nutshell (and omitting legal fine points), the decision under appeal denied the injunction, holding that copyright protection is not available for software distributed free-of-charge under an open source license.
This truly shocked the open source, free software, and public license community, and a coalition of groups led by Creative Commons filed a “friend of the court” brief (pdf) in support of the appeal. (In the interests of full disclosure—Allison Randal and I worked on the brief on behalf of The Perl Foundation.)
The appellate court reversed the lower court’s decision in an opinion that open source lawyers have dreamed about but never thought that we would see.
The court paid tribute to the diversity and importance of the open source, free software, and public license community:
“Public licenses, often referred to as “open source” licenses, are used
by artists, authors, educators, software developers, and scientists who
wish to create collaborative projects and to dedicate certain works to
the public Open source licensing has become a widely used method
of creative collaboration that serves to advance the arts and sciences in
a manner and at a pace that few could have imagined just a few decades
And after noting that “lack of money changing hands” does not equate to lack of economic value, it wholeheartedly endorsed enforcement of the Artistic 1.0 license:
“The clear language of the Artistic License creates conditions to protect
the economic rights at issue in the granting of a public license. These
conditions govern the rights to modify and distribute the computer
programs and files included in the downloadable software package. 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.”
Perhaps the happiest aspect of the opinion is the assured and sophisticated discussion of open source processes, projects, and economic value. Although the briefs filed by the plaintiff and by Creative Commons undoubtedly assisted the court’s analysis, it seems safe to conclude that the court was already aware of the significance of open source—yet another sign that the “movement” actually has come of age.