Today those who believe in free content and free and open source software won a major victory in court, as reported by Larry Lessig, Mark Radcliffe, and Pamela Jones, among others. The underlying facts, and the legal counsel involved, were hardly major figures on the commercial landscape: the open source software at issue - the JAVA Model Railroad Interface - had been developed by the plaintiff, Robert Jacobsen, for model train buffs under an infrequently used free and open source license, and the attorney representing the plaintiff - a solo practicioner in Maryland - was young and inexperienced. But as often happens, a small case between small parties can have huge implications. And decisions that may make good strategic sense to the parties can also have disastrous consequences for those that are not in the same situation. The case in question is called Jacobsen v. Katzer, and you can read the opinion here (a brief summary of the facts and proceedings to date is here). It's been going on for quite awhile, and a lot of people have spent a lot of time behind the scenes helping make sure that it came out the right way. That said, it hasn't received a lot of attention outside of FOSS legal circles, so for those of you who haven't heard of it before, I'll try to distill briefly why this decision is so important, and why people are so pleased with today's decision.
When you boil it down, it comes to these three points:
Open source licenses, Creative Commons licenses, and particularly “free and open source licenses” (like the GNU Public License, or GPL) are new and different from traditional licenses. Whenever you do something new and different, it’s always somewhat up in the air how a court will interpret and enforce it. Since it takes a while before a licensor and a licensee have a falling out that’s bad enough to end up in, and wend its way through the courts, that means that a lot of people can enter into a whole lot of licenses before anyone knows for sure whether they will hold up. Add to that that there are many different courts within a single country, and many countries, none of which is binding on the other, and you can have a situation where a lot is riding on what the courts say. So far, there have been only a handful of cases anywhere in the world involving all of these licenses put together – but tens of thousands of community members, and huge multinational companies are staking a lot on the answer.
The second point is that the facts dictate what a given plaintiff or defendant will argue in court. So it isn’t as if a single case will even tell you that “this license is good” in its entirety. All you know is that this court held that this term did or did not hold up under this particular legal theory.
For the final point, let’s look at the Jacobsen case in particular. First, this was the appellate court that speaks with the most authority on intellectual property cases for the United States – the Court of Appeals for the Federal Circuit, so it’s judgment carries a lot of weight. Second, it overturned a lower court whose opinion greatly alarmed everyone who relies on this type of license. And third, while the point at issue may sound arcane, it’s very important from a practical sense.
What the lower court had said is that if a licensee does something under the particular license in question (the “Artistic License,” v. 1.0 from the Perl Foundation) that it wasn’t supposed to do, then that doesn’t constitute copyright infringement – it’s just a violation of a contract term. That sounds abstruse, until you then look to what the consequences are under one legal theory versus the other. Under contract law, the remedy is monetary damages. But what are the monetary damages for misusing free software? Well, none, arguably, or certainly not much.
On the other hand, copyright infringement carries statutory damages (a set amount that you get without having to prove monetary damages) and also allows you to recover attorney fees. And, most importantly for licenses such as the GPL, it means that your rights to use the copyrighted work at all disappear. That’s really important with GPL and GPL licenses, which are in a very real sense a social contract that says “I will let you use this for free, so long as you give back to the community for the greater good.”
So this, finally, is the big reason why you are hearing such rejoicing over the Jacobsen case. For the community, this wasn’t about money at all, but about receiving the blessing of an important court that the foundations upon which the entire free and open source and Creative Commons philosophies are based are solid and will be supported by the legal system. And, while welcome, that result wasn’t entirely fortuitous – in fact, a lot of the most sophisticated FOSS advocates spent a lot of time (for free) crafting a single, coordinated “friend of the court” brief to be sure that the Court really understood the facts, the law, and the consequence, and it paid off.
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