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The US Court of Appeals for the Federal Circuit has held that an open source copyright ‘Artistic Licence” can be enforced under copyright law, rather than merely under contract law. The case involved. The dispute was between the developers of the Java Model Railroad Interface (JMRI), and Kamind, a company that used portions of DecoderPro to develop a competing product. The product at issue was DecoderPro, an open source project released on SourceForge under an open source artistic license, for interfacing with model railroad control chips. Kamind used a number of DecoderPro files in developing its product, Decoder Commander. However, Kamind did not comply with the Artistic License in a number of respects, including attribution to the original authors, the original owner’s copyright notices, tracked changes or availability of the underlying standard version. The lower court denied relief, saying that the artistic license merely imposed ‘contractual’ promises, and that a violation did not constitute copyright infringement (any contract-based relief would probably have been meaningless). However the Federal Circuit found that the Artistic License is legally enforceable, that its terms constituted ‘conditions’ for reliance on the license, and consequently that a violation of those conditions would put the violating product outside the license and thus make the violator a copyright infringer, potentially liable for an injunction. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. The terms of the licence were classed as ‘conditions’ on the scope of the licence rather than ‘covenants’, which meant they were governed by copyright law, and enforceable as such. On its literal wording, the licence referred to ‘conditions’. Moreover, the fact that money didn’t change hands in return for being allowed to use the copyright work didn’t mean that the restrictions weren’t copyright restrictions. According to the court : The case lays out a clear and compelling description of the rationale for open source, and reflects a complete willingness by the court to lend the force of law to these licenses.

http://news.slashdot.org/article.pl?sid=08/08/13/1857241&from=rss

http://www.techdirt.com/articles/20080813/1655461968.shtml

http://ipkitten.blogspot.com/2008/08/open-source-licence-enforced-under.html

http://www.cafc.uscourts.gov/opinions/08-1001.pdf