Strong Court Ruling Upholds the Artistic License (fwd)

Matthew Flaschen matthew.flaschen at
Fri Aug 15 20:32:30 UTC 2008

dtemeles at wrote:
> Section 2 of the GPL appears to "condition" the rights granted under 
> the license on the licensee's compliance with the "conditions" stated 
> in the license.  Under the CAFC's decision in Jacobsen, it stands to
> reason that a licensee that fails to fully satisfy the "conditions" 
> stated in the GPLv3 would infringe the licensor's copyrights rather than merely breaching the 
> license.  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.

This is fully intended by the GPL and other FOSS licenses.  Regardless 
of whether what you call "bare licenses" are valid, this ruling means 
that in practice we can enforce conditions using copyright law. 
Unintentional violations are still violations, and need to be corrected. 
  Most licensors, however, will work diligently with the violator to fix 
the problem (then grant them a new license), rather than go to court 
immediately.  GPLv3 in fact has specific provisions for automatic 
reinstatement after (usually accidental) violations, in section 8.

> 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.  In other words, the courts presume that the restrictions are 
> covenants rather than conditions precedent unless the agreement clearly 
> defines the restrictions as conditions.  the CAFC's decision wholly 
> ignores this long held principle of law.
> Most licenses, open source or proprietary, contain provisions whose 
> meanings are open to viable debate.  In the past, parties to a software 
> license have largely understood that a licensee that breaches a license 
> agreement's terms is liable to the licensor for damages decided under 
> contract law. 

Most parties to FOSS licenses do not presume this, if they are paying 
attention to the licensors' interpretation (which has just been 
validated in court).  Rather, they presume that if they are violating 
the license, they are violating copyright, and will have to stop 
distributing, at least until they get a new license.  For instance, 
GPLv3 says:

"If you cannot convey a covered work so as to satisfy simultaneously 
your obligations under this License and any other pertinent obligations, 
then as a consequence you may not convey it at all."

There is no option to violate the conditions, then pay damages.

 > Moreover, the provisions that are conditions precedent will need to 
be defined
> with a high degree of care to minimize a licensee's risk of 
> unintentionally infringing the copyrights as a result of miinterpreting 
> the provisions.

I think many licensees (e.g. companies) are just as afraid of breach of 
contract as they are copyright violations.  However, it is very 
important to FOSS /licensors/ that copyright violations be seen as such.

Matt Flaschen

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