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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 (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! :-)


  "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).


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.


"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

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