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The merits of unconditional giving aside, if you build something and decide to give it away, decide to put it into the public domain, can you attach strings to the gift? Can you set rules that stick with your invention and continually govern how it will be used from owner to owner to owner?   And  if those rules aren’t’ followed is the violation copyright infringement?   In a ruling deciding a case addressing the enforceability of open-source software licenses, Wednesday the US Court of Appeals for the Federal Circuit said yes.  The decision reversed a San Francisco Federal Court ruling.

To many, the news may seem like an insignificant, or esoteric, legal discussion.  The Open-Source community, which was rallying for the result, would argue otherwise.  They’d claim the result is extremely important.

Lawrence Lessig, a noted copyright scholar, a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society , wrote  on his blog that “for non lawgeeks, [the decision] won’t seem important.  But trust me, this is huge.” 

In the original case, Robert Jacobsen filed a lawsuit against Matthew Katzer, owner of Kam Industries.  Jacobsen claimed Katzer’s company was distributing commercial software for model railroads that inappropriately used and redistributed source code Jacobsen had created and made public under an open-source “Artistic License.”  Jacobsen’s suit claimed Katzer’s disregard of the open source license terms (which require crediting the original author, among other elements) constituted copyright infringement.   Under copyright law, he sought a preliminary injunction blocking Katzer’s ability to continue to sell the software.

In its finding, the lower court denied the request for a preliminary injunction. The court ruled the open-source Artistic License was “intentionally broad” and that violating its terms was merely a breach of contract, not copyright infringement. That distinction meant that instead of an injunction, Jacobsen’s most likely course of remedy would be to seek monetary damages.  The trouble was, because the software was given away free, arguing for a monetary loss would have been difficult.    

In deciding the copyright claim wasn’t fitting, the lower court effectively restricted the enforcement tools available to address violations of open source software licenses in the future. 

The appellate court’s decision reversed the prior ruling.  Lessig explained it as follows:,  “In non-technical terms, the Court has 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.”

The appellate court’s decision will send the case back ot the San Francisco court but now, there will be more teeth to enforce the violations of the open source lciense. 

That’s a sigh of relief for open source software developers from Wikipedia to the universities to the research labs.
[A Copy of the Appellate Ruling Can be Found Here (PDF) ]

In other amusing legal news…
Venture Capital firm review website The Funded has reportedly been served with a subpoena as part of a Michigan defamation suit.

The lawsuit alleges a commenter who used The Funded website to rate venture fund, EDF Ventures, made false and defamatory comments.  The subpoena is seeking the identity of the commentor, who is otherwise named as a “John Doe” in the lawsuit.

The Funded has until August 27 to reply.  That deadline, however, may be irrelevant.  Founder Adeo Ressi is saying his site doesn’t store personally identifiable information and has no means for making the identification based on the prior comments.

The Funded itself is apparently not named in the lawsuit as a defendant, nor are they likely to be.    The precedent and underlying law in a recent New Jersey case probably assures that:

In New Jersey, literary agent Barbara Bauer had filed a defamation suit against a number of individuals and blogs that had been critical of her professional credentials.  Her suit also named Wikimedia (operator of Wikipedia) as a defendant because references to accusations about her made it onto the public encyclopedia site.

The New Jersey Superior Court granted a motion (PDF) by Wikimedia’s attorneys to dismiss the charge citing Section 230 of the Communications Decency Act which provides immunity from liability for providers and users of an "interactive computer service" who publish information provided by others.   The bit of law says that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

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