Yes, GPL Is Protected By Copyright Law.
Submitted by Taran on Mon, 08/18/2008 - 07:00
At least in the United States. Since I somehow missed that there was even a case going on, the BBC's ' Legal milestone for open source' was an interesting read for a Monday morning:
...The US federal appeals court move overturned a lower court decision involving free software used in model trains that a hobbyist put online.
The court has now said conditions of an agreement called the Artistic Licence were enforceable under copyright law.
"For non-lawgeeks, this won't seem important but this is huge," said Stanford Law Professor Larry Lessig.
"In non-technical terms, the Court has held that free licences set conditions on the use of copyrighted work. When you violate the condition, the licence disappears, meaning you're simply a copyright infringer.
"This is a very important victory." ...
Doing some digging based on the article, I found the Java Model Railroad Interface (JMRI) website that has a post on the legal victory dated August 13th, 2008 - and yes, they also have the ruling available as PDF.
The ruling shows that the case itself is not done:
...For the aforementioned reasons, we vacate and remand. While Katzer/Kamind appears to have conceded that they did not comply with the aforedescribed conditions of the Artistic License, the District Court did not make factual findings on the likelihood of success on the merits in proving that Katzer/Kamind violated the conditions of the Artistic License. Having determined that the terms of the Artistic License are enforceable copyright conditions, we remand to enable the District Court to determine whether Jacobsen has demonstrated (1) a likelihood of success on the merits and either a presumption of irreparable harm or a demonstration of irreparable harm; or (2) a fair chance of success on the merits and a clear disparity in the relative hardships and tipping in his favor.6
The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion...
Doing some more digging, since the 'Artistic License' wording seems somewhat vague to me, I found that the license is actually Free Software Foundation's "GNU General Public License" (GPL) version 2.0. In essence, this was really a victory for the GPL.
The JMRI site has a great bit of information about the case.
But at the end of the day... the GPL has been upheld based on Copyright Law. And the GPL is a Free Software License which predates the Open Source Foundation... Ask Richard Stallman. If he doesn't tell you first. ;-)
Latin they'll be screaming.
FOSS enthusiasts have won a Pyrrhic victory in Jacobsen v.
Katzer. Pyrrhic because a "condition" is a term of art in
contract interpretation. We now know that all copyright license
containing "conditions" including the Artistic license are
interpreted under the states' common law of contracts. When a
license condition is not met the license remains a contract:
"('[A] condition precedent is a condition precedent to
performance under the contract, not formation of the contract.
When a condition precedent is not satisfied, it relieves a party
to the contract of the obligation to perform. It does not negate
the existence of the contract or the binding contractual
relationship of the parties.'); Wells Fargo Bank, N.A., v. The
United States; 88 F.3d 1012 (CAFC 1996).
We shall soon see a lesson in the Latin language. There are two
terms FOSS advocates will be screaming (in pain): "in personam"
and "in rem":
"A right in personam means a right available against
a determinate individual or determinate individuals. All
contractual rights, as well as some others, fall thereunder. A
right in rem means a right available against persons generally,
or, as frequently expressed, against the world at large. All the
rights that come within the branch of law designated Torts fall
within this category."; Modern American Law (Law of Torts)
So. . . in personam rights created by contract bind the private
parties to the contract (parties in privity). In rem rights bind
third parties and are a "right against the world".
Contractual waiver of exclusive copyrights in contracts is
perfectly legal, since contracts bind only their parties and thus
create rights 'in personam'. When you condition your waiver of
exclusive copyrights such that a waiver to bind third parties to the
contract (i.e. the 'general public') is required you are
attempting to create rights "in rem" -- rights against the world.
This demand offends 17 USC 301(a) establishing preemption.
The celebrated decision ProCD v. Zeidenberg, 86 F.3d 1447 (7th
Cir. 1996) makes this point crystal clear:
"A copyright is a right against the world. Contracts, by
contrast, generally affect only their parties; strangers may do
as they please, so contracts do not create "exclusive rights. . .
Like the Supreme Court in Wolens, we think it prudent to refrain
from adopting a rule that anything with the label "contract" is
necessarily outside the preemption clause: the variations and
possibilities are too numerous to foresee. . . But whether a
particular license is generous or restrictive, a simple two-party
contract is not "equivalent to any of the exclusive rights within
the general scope of copyright" and therefore may be enforced."
Most open source license are not simple two-party contracts.
FOSS advocates are going to learn to hate Latin.
Sincerely,
Rjack :)
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