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Artistic license being tested in court?

by mr_mischief (Monsignor)
on Aug 27, 2007 at 03:29 UTC ( #635205=perlmeditation: print w/replies, xml ) Need Help??

Over at JMRI, one might notice they're using the Artistic License. One might also notice on their JMRI defense page that the Artistic License is being attacked along with their organization.

There is more information over at Use Perl;, and more at Slashdot's article on the subject.

Some comments are saying this is a test of the lawyers involved more than anything, but it's interesting that the group failed to get an injunction on someone copying their stuff licensed under the Artistic License against the terms of the license under copyright law.

I'm not a lawyer, and none of my friends who are lawyers happen to be copyright specialists. I was wondering if anyone might know more about exactly is going on with Artistic 2.0, this case, or what effect it might have on perl and the many modules licensed either Artistic or "under the same terms as".

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Re: Artistic license being tested in court?
by merlyn (Sage) on Aug 27, 2007 at 04:38 UTC
      From the motion to dismiss copyright complaints, the person removing attributions and trying to close-source the project for his own gain has argued this:

      Defendants seek to dismiss the Copyright Act claim on the basis that the right to bring a copyright infringement claim has been waived since Jacobsen granted the general public a nonexclusive license to reproduce, copy and distribute the open source software.
      This is despite the fact that the copying has been done contrary to conditions of the license, which include attribution. The argument seems to be that once you let someone copy a work, the restrictions you put in the license about what else they must do in order to be allowed to copy the work are unenforceable under copyright law.

      The result, if the judge agrees, would seem to be that instead of criminal copyright violation, the copyright holder would have to sue for breach of those terms as per contract law. That puts a much higher burden on the copyright holder to protect the work.

      I'm hoping someone can clear up any misconceptions I and others have over this case. It's clear the sky is not falling, but this might be bad for Open Source developers in a more limited way.

Re: Artistic license being tested in court?
by brian_d_foy (Abbot) on Aug 27, 2007 at 18:41 UTC

    Randal pointed you toward my post on use.Perl, but don't think you read it based on your comment to him. Here's a shortened form:

    Actually, the Artistic License is not being attacked. No one is attacking it. In fact, the court has upheld it so far. People are getting worried, however; the plaintiff made a copyright infringement claim citing the Artistic License, and it looks like the court ruled correctly that there can be no infringement when you give everyone the same right to copy. That is, the defendant has the right to copy, so he cannot infringe on or damage anyone else's right to copy. That's a claim unrelated to what the defendant has actually done, though, and the remaining claims about patent fraud.

    The plaintiff did not bring a claim to ask the court to enforce the Artistic License, and as such the court cannot rule on that.

    So far, this shouldn't have any problems with Perl. The court ruled on the claim in a way consistent with the intent of the Artistic License, saying that it gives everyone the right to copy. That's the point. Beyond that, the court has no claims on which it can rule, so it has nothing else to say about the Artistic License.

    brian d foy <>
    Subscribe to The Perl Review
      I've in fact read it three times.

      The defendant is claiming he has a right to copy regardless of his lack of adherence to the terms of the license which grant him that right.

      The plaintiff did ask for injunctive relief based on copyright violations. Whether or not they presented it correctly is in question.

      What's not clear to me about your understanding of the case is that the defendant has removed attributions, which by the intent of the Artistic License should absolutely not give him the right to redistribute the work.

      Now, I'm not sure you've read everything I've written here. I never said the judge ruled the entire license null and void or any sensationalist crap like that.

      What I said is that if the conditions placed on the copying and redistribution of a work have to fall under contract law rather than criminal copyright law, that's a bigger burden on the copyright holder. So far, that appears to be the tone of the case as pertains to the copyright claims.

      Take a look at Law & Life in Silicon Valley which is written by a lawyer. The author summarizes that the Artistic License is being ruled to be a contract, and the restrictions on the scope of the license included in the license itself do not in fact restrict the scope of the license in terms of copyright law. He says the result is that only way to bring the claim is as a breach of contract, which means damages must be proven rather than statutory penalties being applied. He also says it usually is less likely that the court will less likely grant injunction against the party breaching the contract than if it was deemed to be copyright infringement.

        No, you've mixed up some issues. The Artistic License was discussed in the claim of the plaintiff. You're saying "The defendant is claiming...". That's something different. The court has not ruled on that yet. They ruled on a particular claim of the plaintiff. People are complaining about the court throwing out the copyright infringement claim because the defendant hasn't infringed on anyone's right to copy. It's not that the defendant is right, just that nobody else lost the right to copy. The court has not ruled on claims of the defendant in this regard.

        I've already read the various blogs, including the Law & Life in Silicon Valley. More importanly, I've actually read the entire complaint and the entire preliminary ruling. If you read the original documents, you get a much different picture than what people are saying.

        When you read the ruling, you'll see that the court did not say that the Artistic License is a contract, but that the claim was not covered by copyright law, and might be covered under contract law. That's where the lawyer you mention bends the truth a bit. Since license compliance was not a claim of the plaintiff, the court did not and could not rule on that.

        Also, I'm not sure why you think I don't understand that the defendant removed copyright attributions. I say that in the use.Perl post rather clearly, and point to the relevant part of the Copyright Act. That's not an infringement of the plaintiff's right to copy though (the claim made to stop harassment by the defendant). That's a wholly different matter, which is the defendant's right to copy.

        Update: You talk about Count Eight. The court did not discuss Count Eight in its preliminary ruling, so it hasn't made a decision on that. The Artistic License is discussed in the dismissal of Counts Five and Ten. As I've repeated many times, the court has not decided this case, it's merely ruled on some of the motions. Read the very first sentence of the ruling; it's not about Count Eight. You're talking about something completely different than the actual ruling, which you should read. Really. Read it. Once you've read the ruling, compare what it actually says to what you are saying.

        brian d foy <>
        Subscribe to The Perl Review
      "Actually, the Artistic License is not being attacked. No one is attacking it. In fact, the court has upheld it so far."

      Funny way to uphold it, by ruling that it can't be used to get an injunction stopping behavior that anybody here would protest. Or do you want +your+ work credited as belonging to somebody else?

      "That is, the defendant has the right to copy, so he cannot infringe on or damage anyone else's right to copy. "

      I don't see this about anybody else's right to copy, so I must be missing something. I see this as about trying to stop somebody from +improperly+ copying, and discovering that the Artistic License won't let us. Isn't that what just happened?

      If we want to stop somebody from claiming some code as their own, taking my name off it, and selling it for $$$, how do we do that now?


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