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Re: Ruling Is a Victory for Supporters of Free Software

From: Rjack
Subject: Re: Ruling Is a Victory for Supporters of Free Software
Date: Sun, 17 Aug 2008 05:38:05 -0400
User-agent: Thunderbird (Windows/20080708)

On 2008-08-16, Alexander Terekhov <> wrote:

Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd) From: Date: Fri, 15 Aug 2008 14:48:12 -0400


Second, the CAFC's opinion creates a great deal of uncertainty for
software licensing (whether proprietary or open source).  Let's take the
GPLv3 as an example.  As most peoople are aware, there are a variety of
disagreements over exactly what is required of a licensee to comply with
various provisions of the GPL. Section 2 of the GPL appears to
"condition" the rights granted under the license on the licensee's
compliance with the "conditions" stated in the license.  Under the
CAFC's decision in Jacobsen, it stands to reason that a licensee that
fails to fully satisfy the "conditions" stated in the GPLv3 would
infringe the licensor's copyrights rather than merely breaching the

    What "uncertainty"?

    This is the stated design goal of the license.

license.  Thus, even if the licensee unintentionally violated the terms
of the GPLv3 because the meaning of the terms are not clear, the
licensee would be liabile for infringement.


There are few really certain things in life. Some of those are death, taxes and the fact that a federal judge is looming in the background
with a big red "preempted" stamp in his hand, just waiting to apply it
to the GPL on its face.

That background scene is far away though. The Jacobsen decision was contrary to the controlling authority (the individual Courts of Appeals) in every other Federal Circuit in U.S. jurisdiction. The Federal Circuit has original jurisdiction in patent cases. Unless a copyright dispute is raised in the context of a patent dispute the Federal Circuit doesn't even hear copyright cases. (Read the jurisdictional recitation in Jacobsen v. Katzer.)

Take a deep breath and hold it Jedidiah, while we all wait for this decision to become the controlling authority in another copyright case.
I'm sure we'll see you again in about twenty years.

Rjack :)

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