Strong Court Ruling Upholds the Artistic License (fwd)

John Cowan cowan at
Fri Aug 15 19:27:10 UTC 2008

dtemeles at scripsit:

> First, the CAFC's decision is a clear repudiation of the "bare  
> license" theory long espoused by Mr. Moglen and his followers.  The  
> CAFC's decision reflects the fact that open source licenses, like any  
> other form of software licenses, are contracts.  

Distinguo.  Moglen et al. have never claimed, as far as I know,
that *all* open-source licenses are not contracts, merely that
*some* of them are not.

> The necessary implication of this finding by the court is that open
> source licenses must be interpreted in the context of applicable state
> law, and to an extent, the common law of the Federal Circuit in which
> the open source agreement is interpreted.

Insofar as they are contracts, and insofar as contract terms are
relevant to the dispute, yes.

> (This is directly in conflict with the CAFC's willful  
> failure to follow state law and Ninth Circuit precedent regarding the  
> interpretation of restrictions as conditions precedent).

That would be true only on an over-hasty assumption that the term
"condition" in copyright law, or the law of licenses generally, can be
identified with the term "condition precedent", which belongs to
contract law.

Here's a hypo that may serve as an intuition pump:  Suppose I issue you
a license to enter and use my land solely for the purpose of hunting.
(I often issue these licenses myself during deer season.)  This is a
bare license with a condition.  If I find you on my land not hunting,
does my action sound in trespass, or merely in contract?

> Thus, even if the licensee unintentionally violated the terms of the
> GPLv3 because the meaning of the terms are not clear, the licensee
> would be liabile for infringement.

Doubtless.  But copyright has always been a matter of strict
liability, with very few safe harbors, mostly statutory.

> Why does this matter?  State courts, the federal circuit courts of  
> appeal and the US Supreme Court have all uniformly and routinely  
> interpreted license restrictions as covenants rather than conditions  
> precedent.  

I assume you refer (inter alia?) to licenses for proprietary software.
However, such licenses are *not* copyright licenses: they generally
grant no right to copy, distribute, modify &c whatsoever.  There are
various relevant safe harbors, such as the first-sale doctrine
(although Microsoft has tried to claim that it does not apply to
copies of Windows on computers being resold by the consumer)
and 117(a).

> Most licenses, open source or proprietary, contain provisions whose  
> meanings are open to viable debate.  

Their drift is clear enough, and 99.99999...% of the time the
minutiae did not matter.  There are two kinds of people who violate
open-source licenses: those who do not understand them (and are generally
eager to cure any breach), and open and notorious evil livers who don't
care what they do.  Such are Katzer/Kamind.

> The CAFC's Jacobsen decision unwittingly attempts to radically change  
> the risks of licensing software.  
> [...]
> If the CAFC's position is indeed the law of the land, then any cause
> of action relating to a breach of a provision in a license agreement
> that merely mentions the word "condition" (or some synonym thereof),
> or that could conceivably be interpreted as a condition precedent,
> will need to be decided by a federal court.

These claims are the merest FUD.


I could dance with you till the cows            John Cowan
come home.  On second thought, I'd    
rather dance with the cows when you             cowan at
come home.  --Rufus T. Firefly

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