Strong Court Ruling Upholds the Artistic License (fwd)

Ben Tilly btilly at
Fri Aug 15 20:41:17 UTC 2008

On Fri, Aug 15, 2008 at 12:59 PM, Marc Whipple <MWhipple at> wrote:
> From: Ben Tilly [mailto:btilly at]
>>That is a technical matter that I have no opinion on.
> [Marc Whipple] I am a lawyer, but this is not legal advice. Always
> consult an attorney licensed in your jurisdiction and familiar with the
> relevant law before making legal decisions.
> I think you probably mean, "I do not consider myself able to offer an
> informed opinion on this point," but the way it was phrased sounds a
> little dismissive. If you didn't mean it that way, accept my apology if
> I've over-read your statement.

I do not mean to be dismissive.  I meant exactly what I what I said.
The point raised involves technical legal material that I have no
opinion on.  Not even an uninformed opinion.  I have no idea how to
determine what court has jurisdiction, or what that means for me.  If
I ever need to find out, I will hope I have a competent lawyer giving
me legal advice.

> That being said, calling this a "technical matter" is oversimplification
> to a rather radical degree. As an attorney who often walks the line
> between questions of Federal and State jurisdiction it was one of my
> first concerns when I read a summary of the decision this morning. The

Please understand that when I say "technical matter" I do not mean "a
technicality".  I mean a matter that requires technical background to

Remember that I deal with computer programs for a living.  I am
painfully aware of how critically important technical issues are.  I
am painfully aware of how glossing over technical issues can lead to
serious trouble.  But I remain aware

> utter pre-emption of matters even remotely concerned with the Copyright
> Act means that this is a question of the utmost importance to anyone who
> has anything to do with such licenses. I haven't read the full decision
> yet, and so won't comment on whether the assertion the OP makes is
> accurate, but if it is, he is right to be concerned. Among other things
> it would mean that the enforcement of OS licenses just got, at the bare
> minimum, a lot more expensive.

Nothing is cheaper than the lawsuit you don't have to bring.

Open source software has had a growing economic impact in the USA
since the 80s.  There has been increasingly widespread awareness
outside of the programming community of the importance of open source
software for about a decade.  Yet there has been very little
litigation involving open source.  Why not?  Well I'd say it is
because people who are inclined to give away their work fairly openly
are generally not the kind of people who want to file lawsuits.
They'd prefer to settle peacefully.  And the people who have been
caught infringing on open source software have generally been advised
by their lawyers that they should settle.  Particularly since the open
source people don't tend to ask for very much.  (Typically you're
asked to stop infringing, try to make your past infringement right,
and institute auditing procedures to make sure you don't infringe in
the future.)

This decision makes it clear that copyright holders have very strong
enforcement options and that the legal system can levy substantial
penalties.  This increases the incentives to settle peacefully rather
than go to court.  Given that the copyright holders generally make
reasonable requests, the result should be less litigation.

Now what would the contrary decision have meant?  I am not a lawyer,
but my understanding is that it would have put open source licenses,
potentially including the GPL, at risk of being interpreted as being
only contracts.  My understanding is that if I hold a piece of paper
that I claim is a contract, but I have no evidence that the other
party every agreed to it in any way, shape or form, then my odds of
successful enforcement of that contract are non-existent.  This would
make it very difficult to enforce open source licenses on popular open
source products within the USA.  It doesn't matter how cheaply I can
bring a court case that I am going to lose - doing so is a waste of
time and money.

So how is having an expensive option that I would win and likely will
never have cause to use worse for me than being restricted to a cheap
option that I'd definitely lose with?  As far as I can see the
availability of the expensive option is a good thing for me.


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