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Artistic License upheld by court

by tilly (Archbishop)
on Aug 13, 2008 at 22:21 UTC ( #704240=perlnews: print w/replies, xml ) Need Help??

As seen on slashdot, the US Court of Appeals for the Federal Circuit has reversed a lower court decision and has upheld the Artistic License. This is important for Perl because Perl itself is under the Artistic License. Therefore the lower court decision that the Artistic License is subject to almost no legal protection would have been bad for Perl. However it is worse than that, if the previous legal reasoning had become a precedent applying to other open source licenses, then open source licenses would become essentially useless in the USA.

The technical details rest on an argument about the difference between a "covenant" and a "condition". In short, Kamind downloaded and copied code that was licensed under the Artistic License, without following the terms of the Artistic License. (Then Kamind filed for a patent based in part on functionality from that code, then sued the original project for violating the patent, but let's not get too far into the gritty details.) When challenged on this in court they claimed that the Artistic License was so broad that the code was essentially public domain, therefore no copyright case exists. And all that they can then be sued for is the implied contract with the copyright holder, the total damages for which are the cost of the software, namely zero. In legal terms the terms of the Artistic License are covenants of the contract, and not conditions of the license.

This reasoning would say that the Artistic License gives anyone the right to do anything they want with Perl's source code with no repercussions in the USA. If this reasoning got applied to other licenses, it could be bad for other open source licenses, like the GPL.

The lower court bought this strange reasoning. The higher court did not. The higher court said that the terms of the license really are conditions, and therefore violation of the terms puts Kamind in violation of copyright law.

As Lawrence Lessig says, this is huge and important news for the open source community.

I have a very minor connection with this case. In January 2007 I saw an email from Bob Jacobsen on about the lawsuit. I contacted various people at The Perl Foundation pointing out that it was relevant to us, then Allison Randal got involved and put him and his lawyer in contact with people who could help.

Update: I sent personal congratulations to Bob and Allison and found out from both that Allison's role in this result was larger than I had known. Which reminds me, again, that she does a lot more than people in the Perl community realize, and doesn't get appreciated often enough for it.

Replies are listed 'Best First'.
Re: Artistic License upheld by court
by Joost (Canon) on Aug 13, 2008 at 23:16 UTC
    tilly thanks for your summary.

    Reading (well skimming, really) the decision, it seems to me that the basic reasoning behind it is that the artistic license represents restrictions on "economic rights" exceeding or extending mere payment for the software in question. In other words, the reasoning seems to be that because the software has some economic value even if it's been given away for free (under certain conditions - and this is, or seems to be, important), the license's conditions should be respected under standard copyright laws.

    It seems to me that this kind of reasoning would apply to most popular open-source licenses in use today. Especially including the GPL and LGPL.

    Anyone who knows about this stuff care to comment? I would especially like to hear about this from a European point of view (I live in Europe - the Netherlands to be precise - and I would like to have my rights under the usual OS licenses respected)

      I am not a lawyer, but my understanding of the decision matched yours. The economic value argument is critically important in the USA because copyright here only applies to economic value. We have no concept of authors having moral rights.

      I am not familiar with law in the Netherlands, however the GPL has been upheld multiple times in Europe, and the argument used against the Artistic License looks like it would simply fail in a jurisdiction that had any notion of moral rights.

Re: Artistic License upheld by court
by talexb (Canon) on Aug 14, 2008 at 14:29 UTC

    The story was also broken on Groklaw -- and there's some good analysis there as well.

    It's always delightful to see someone on the bench write a nice verdict like that.

    Alex / talexb / Toronto

    "Groklaw is the open-source mentality applied to legal research" ~ Linus Torvalds

Re: Artistic License upheld by court
by dreadpiratepeter (Priest) on Aug 13, 2008 at 23:59 UTC
    I am going to use a foul word here, which normally I would not do in a forum, because it is generally not appropriate, but...
    This Katzer guy is in the running for being the biggest douche in the history of computing.
    I really hope they can wring every last nickel out of him, or at least that karma gets him.
    I also would hope that deliberately misleading the US Patent Office for the purpose of preying on innocent people is a felony, and the Katzer will find his Karma in federal prison, but I guess that is too much to hope for.
    It's too bad, if he stole a stereo from Best Buy he would be in jail, but stealing thousands of dollars and thousand of hours from someone won't get him there

    "Worry is like a rocking chair. It gives you something to do, but it doesn't get you anywhere."
Re: Artistic License upheld by court
by swampyankee (Parson) on Aug 14, 2008 at 11:18 UTC
    (Then Kamind filed for a patent based in part on functionality from that code, then sued the original project for violating the patent, but let's not get too far into the gritty details.)

    That just about sums up the failing of the US system of software patents, which has (reportedly) issued software patents where the patentee was trying to get protection for techniques well within the commonly known state of the art. Getting a patent on something stolen from somebody else's existing program should be impossible; filing a patent application which is stolen from existing, well-known, work should be fraudulent. If the US Patent Office is to continue issuing software patents, they should get quite a few more diligent patent examiners who are cognizant of the the state of the art.

    Hopefully, this character's patent application was rejected after he lost his court case, but I wouldn't bet on it.

    Information about American English usage here and here. Floating point issues? Please read this before posting. — emc

      Although the US hasn't been diligent enough in looking for prior art, at least we don't have a first-to-file system like most other countries (although, there was a a bill to do that last year), in which I would assume stealing someone's work and patenting it would be even more encouraged.

      I'd personally prefer the times on copyrights and patents be reduced ... possibly a tiered system (as the drug companies insist they need more time to make money off their stuff, make it so that their lobbying doesn't affect all forms of patents).

      (I admit, I once tried to figure out what was required to file a patent, so I could submit a 'Apparatus for Dispute Resolution', with a schematic of 'Thunderdome' attached.)

      update: fixed missing closing parenthesis

Re: Artistic License upheld by court
by zentara (Archbishop) on Aug 14, 2008 at 11:19 UTC
    This Katzer guy is in the running for being the biggest douche in the history of computing.

    He can probably get a job at SCO .... home of the db lawyer, and bankrupt both morally and physically.

    I'm not really a human, but I play one on earth Remember How Lucky You Are
Re: Artistic License upheld by court
by cbrandtbuffalo (Deacon) on Aug 14, 2008 at 15:17 UTC
    The JMRI site, the homepage of the project involved in the case, has a nice collection of links with discussion so far: JMRI Defense Page.
Re: Artistic License upheld by court
by JavaFan (Canon) on Aug 16, 2008 at 11:21 UTC
    This reasoning would say that the Artistic License gives anyone the right to do anything they want with Perl's source code with no repercussions in the USA. If this reasoning got applied to other licenses, it could be bad for other open source licenses, like the GPL.

    But if that reason got applied to other licenses, there's a much smaller chance of holding up. The argument used in this case was that the terms in the Artistic license were too vague - something people have been saying for at least a dozen years. Some people have considered the Artistic license not to be 'free' or 'open' because the wording leaves too many leapholes. Redhat prefers to not have packages that just have the Artistic license (I've changed licenses of code of mine after being contacted by RedHat's legal department) And that's why there's now Artistic 2.0.

    So, I'm glad the Artistic license hold up (but I presume it can be appealed all the way to the high court), but I don't think the GPL or other strongly worded licenses would be in danger if it didn't held up.

      While not a lawyer, I find myself in strong disagreement with you.

      The past concerns about the terms in the Artistic License are that there could be disagreement about what the terms say, and that there are ways to follow the terms and get a result the license obviously doesn't intend. In other words it is not legally drafted very well. But there is no concern about how clearly it is spelled out that the license to copy depends upon those terms.

      None of that is applicable here. Both parties agreed on the terms. They agreed what they meant. They agreed that Kamind had failed to satisfy them. Their disagreement was over what recourse was available. Kamind's position was that they had violated the covenants of a contract. In short, "We agreed to the license, then we didn't carry out our penalties. But we had permission because we agreed. We just didn't follow through." The contract didn't lay out penalties. Therefore damages were limited by California state law to money lost - which was nothing.

      The judgment handed down says that the terms of the copyright license were conditions, not covenants. So violation of them puts you in violation of copyright law. The judge found the license clear that it offered conditions, not covenants of a contract. Right in the preamble it says, "The intent of this document is to state the conditions under which a Package may be copied". The terms are in a section labeled Conditions. And conditions should mean conditions.

      The Artistic License 2.0 is no clearer than this that its conditions are conditions, not covenants. The GPL is admittedly clearer - it says that the result of violating the license is that your license is terminated. However if you accept the principle that open source licenses have covenants, not conditions, then it isn't far from that to saying that the GPL offers covenants, but I never agreed to it, so the penalties offered in the contract I never accepted do not apply to me. Admittedly the result would completely violate any common sense reading, but the law isn't about common sense. It is about using a web of precedent and established principles to achieve the result you want.

      Now if that's not scary enough, there was worse. One of the arguments that Kamind used was that since the software was given away to all for free, there was no possible economic value to the software. Since copyright law in the USA only defends the possible economic value, there was no possible copyright case to be made. This reasoning, if accepted, would have torpedoed the GPL. Not only did the court not accept this line of argument, but they made it very clear in their decision that there can be economic value without money changing hands. That part of the decision reads more like an advertisement for open source than a legal judgment. I've heard that that part of the judgment was copied from one of the legal briefs, and that section was originally written by Allison Randal. Which explains why it is so pro-open source. :-)

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