Submitted by A federal appeals court has overruled a lower court ruling that, if sustained, would have severely hampered the enforceability of free software licenses. The lower court had found that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but was not copyright infringement. The difference matters because copyright law affords much stronger remedies against infringement than does contract law. If allowed to stand, the decision could have neutered popular copyleft licenses such as the GPL and Creative Commons licenses. The district court decision was overturned on Wednesday by the United States Court of Appeals for the Federal Circuit.
You notice that your program is being used by someone
in violation of free copyright ?
Not quite. The only thing that gives them the right to copy your work is the license you have put it under. Any copying other than that granted by the license (or fair use) is copyright infringement.
Just because you do not expect monetary compensation, that does not remove your right to copyright protection.
Precisely. The only two cases where normal copyright protections wouldn’t apply are the creator explicitly putting their work into the public domain or a sufficient period of time passing (just short of hell freezing if folks like Disney get their way) sufficient for the copyright to expire
Developers work must be protected from freeloaders.
There are rules for use, so follow them and there’s no problem.
Exactly,
IMHO the license restrictions are a contract to be granted ‘copy-left’ usage rights. If the contract is violated, then there is also copy-right infringement, as no copy-left/usage rights had thus been granted.
The license, as I see it, is the barrier to any utilization of the code itself. Violation of the license is termination of access to the code, therefore further usage should be copyright infringement AND breach of contract. The contract, thus being violated, MAY need to explicitly outline punitives in the event of any given manner of breach.
Each section providing authorization SHOULD/must, therefore, directly state that said authorization is retro-actively withdrawn, and will be actionable within the bounds of the law in the given jurisdiction.
<SoftwareLicense>{
xxx Software License, Ver 1.2
Constitution of Contract and Parties:
…
Terms of Contract:
…
Authorization of Use:
…
Remedies in violation of terms of contract:
…
Legal mumbo-jumbo – jurisdiction limits, etc…
}</Software License>
Hope the law sees things a bit more like I see them, I provide strict controls to prevent, primarily, Microsoft from using the code I intend to eventually release as open-source. The current state would make my provisions valid, yet unenforceable – a sad state.
Of course, I actually intend on collecting actual signatures for some source-usage contracts, but then that really isn’t open-source. With open-source I should be able to assign restrictions in one immutable contract ( per source version ), and have it stick. My only requirement would be to remain within the bounds of the law.
–The loon
You say you wouldn’t let Microsoft using the software? This is against the spirit of the Free Software Foundation. They say that anyone can use Free Software without restriction provided they observe the four fundamental software freedoms, even Microsoft. I know because I heard Richard Stallman talk (twice) on this yesterday.
To think the enemy is Microsoft is wrong. It is anyone who would remove the four fundamental software freedoms from anyone else. This include us free software lovers too if we are not careful! That is what makes us ethically different from Microsoft. If they gained enlightenment and truly respected software (and user) freedom then we should welcome them. Unfortunately, this is probably not in their corporate DNA (although individual Microsofties seem able to grok it).
Sort of … depends on what you mean by “use”. If you mean just running the code then for FOSS code there are no restrictions. This is all that the vast majority of people and businesses actually just want to do … run the code.
If you mean copying the source code then that is different. The source code is an original work of the author of the code and hence copying it falls under the regulation of copyright law. The default provision under copyright law is simply that “you may not copy without permission”. Permission to make copies must come from the author/owner of the copyright.
Licenses are simply objective evidence of grants of such permission. All licenses have conditions, and are invalidated by breaches of those conditions. If you do not possess a valid license (either because you never obtained one, or because you obtained one but you violated its conditions) … then you do not have permission to copy the work, and you are subject to the penalties as provided by copyright law.
Nowhere at all does any of the above rely on the exchange of money being involved in the aquisition of the license.
Edited 2008-08-15 05:47 UTC
The lower court decision was obviously wrong, and I doubt whether they fully understood what was happening. I don’t know how they arrived at this being a breach of contract.
I had the opportunity of listening to Richard Stallman talk twice yesterday (he doesn’t often come to New Zealand so we have to make the most of it). I think that he would view the upholding of copyright as a win for all software users.
If you read the article you will see the ruling also appears to support proprietary software developers as well (provided they write original code and don’t try and misappropriate free- and open-source software).
I would be very hesitant to say the lower court’s ruling was due to incompetance. Usually you find that they made the most rational decision given the current laws, evidence given, and (especially) the arguments presented by the legal parties. Perhaps it took the appeal for the argument to be pitched in a way better understood by the court.
It revolves around the interpretation of the clauses of the license as clauses of a contract instead of conditions of a copyright notice. This can be a subtle difference, but in this case it was not: the artistic license clearly states that the conditions are copyright conditions.
I believe this was probably a case of a good lawyer on the part of the defendant being effective in his arguments. Fortunately the next judge to get it was more careful, so no harm done.
How the hell are you gonna get sued for violating the license for a piece of software that’s supposed to be Free?
Note: That question is rhetorical, no need to answer. It’s like the Conservative version of Freedom.. they’re all for it, so long as your version of Freedom agrees with theirs.
IMHO, they should call it Copyleft software, because it ain’t really Free.
I cannot really agree with that.
I live in a “free country” but there are still rules (i.e. laws) that I must adhere to and penalties if I do not. This is a fundamental requirement for order and affords me to live in relative peace and safety.
To me, true uncontrolled freedom would ultimately lead to an uncivilised world, which is not desirable for anyone but a few.
Some software may be classed as “free” but that “freedom” must be protected.
I don’t follow your logic. Firstly, just for your benefit, free doesn’t necessarily mean cost. It can mean freedom, in GPL licensed software etc, it means freedom to see the src code and modify it to suit your needs. That freedom does NOT extend to abusing the GPL etc by taking the code, stripping out copyright notices, re-using it in your own branded “proprietary” software to make a profit, without returning any of the changes/improvements to the original community.
Let’s put it this way – you steal a car, but change the paint job on it and put a new engine in it – is it still stealing? Under your ideals, it isn’t, because it’s not the original car. And since you stole it, and didn’t pay for it in the first place, no crime took place. You simply cannot take someone elses hard work and ignore their rules and abuse it.
Once again I’ll repeat:
If you don’t like the GPL etc then don’t use the software. Simple. How hard is that for individuals and businesses to comprehend?
Dave
Though i agree with what you’re saying -the car analagy was a very poor one as using other peoples source isn’t technically stealing (hense the whole grey area with copyright law).
Copyright law doesn’t have any grey areas … copyright law is literally hundreds of years old, and very well established and understood. It is approximately as old as printing presses.
Copyright law does not rely on the concept of “stealing”. Stealing something means taking a physical thing away from its rightful owner such that the owner is deprived of the use of it.
Copyright violation is a whole different crime. Copyright law means that the creator of a work (normally a work that is intended to be published and which is possible to copy) reserves the right to control copies of that work. Making a copy without permission (of the author) breaks this law … even though no stealing is involved.
Edited 2008-08-15 06:08 UTC
I meant with article in question. The fact that it had to go to a 2nd court shows that it was “grey” enough for teh 1st court to come to (what in my opinion was) an incorrect decision.
Isn’t that EXACTLY what I posted (only my post was much more direct and to the point)?
Edited 2008-08-15 09:49 UTC
The definition of Free Software:
http://en.wikipedia.org/wiki/Free_software#Definition
… states that it provides four freedoms:
Freedom 0: The freedom to run the program for any purpose.
Freedom 1: The freedom to study and modify the program.
Freedom 2: The freedom to copy the program so you can help your neighbor.
Freedom 3: The freedom to improve the program, and release your improvements to the public, so that the whole community benefits.
Note that nowhere within these four freedoms does it say the software should be zero cost, nor does it say that one of the freedoms is to let someone else take the author’s code, obscure it away and sell it to someone else for their own profit. In fact, the law of the land (copyright law) prevents people from doing that.
Edited 2008-08-15 00:17 UTC
As I mentioned, in an earlier post I heard Richard Stallman talk yesterday (very enlightening and entertaining it was too). The Free Software Foundation is far from anti-business as some would make out. They wish to encourage business. At one time Stallman survived by asking users to pay for Emacs if they could.
However, the Free Software Foundation cannot tolerate institutions that serve to restrict the liberty of users. Sometimes companies are so confused the think the only way to make money is to restrict the software liberties of their customers.
One huge example is if a developer releases a piece of software that has a non-commercial clause in it and somone tries to sell it anyway. Kind of like Psystar.
Because it does NOT mean that violating a license equals copyright infringement – what it means is that a licence cannot disregard copyright. The defendants, Kamind were claiming the license granted them power to ignore the copyright through a broad interpreteation of the (outright vague) leftist license – by upholding the copyright they in fact REDUCED what you can declare in your contract law, NOT added to it.
This was NOT a victory for copyleft, but an upholding of the base copyright laws over attempts to subvert it with the vaguaries of contract law.
Because at the end of the day, that’s all contract law is, an attempt by a party to circumvent or supplement general law… and frankly some circumventions should really be hands-off and not allowed. (Like giving credit where credit is due)
“Copyleft” was NOT violated – Copyright was. All the court did was not allow Kamind to use the rather vague licensing as a shelter from ignoring it.
Edited 2008-08-15 22:08 UTC