I was pleased to read this morning that the US Court of Appeals has overturned a District Court ruling that that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but could not be considered copyright infringement. The District court had ruled that  version 1.0 of the Artistic License  was  ‘ intentionally broad’ , and unlimited in scope, and therefore did not create liability for copyright infringement. The Court of Appeals disagreed.

The Court found that the district court had dismissed the terms of the licence too lightly.The Artistic License grants users the right to copy, modify, and distribute the software:

provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

a) place [the user=s] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include [the user=s] modifications in the Standard Version of the Package.

b) use the modified Package only within [the user=s] corporation or organization.

c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

d) make other distribution arrangements with the Copyright Holder.

According to the court the term ‘provided that’ makes it clear that there are conditions to making use of the ‘free’ code, and that ignore those conditions is an infringing act. So the case goes back to the district court to determine whether the copyright owner in the case 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 favour ( at oral argument, the parties admitted that there might be no way to calculate any monetary damages under a contract theory).

The case involves Robert Jacobsen, who manages an open source software group called the Java Model Railroad Interface (JMRI), which created a software package the allow model railroad enthusiasts to control model trains by programming the decoder chips.  A company called Kamind Associates subsequently downloaded parts of Jacobsen’s project, and copied, modified and distributed parts of that code in its own commercial software, removing any reference to where the files originally came from and not documenting any changes made to the files.

Larry Lessig, explained the decision in non-technical terms.”The Court has essentially held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.“