encforceability of Open Source Licences (Re: (OT) - NOT A Major Blow to Copyleft Theory)

Michael Poole mdpoole at troilus.org
Tue Feb 12 07:05:55 UTC 2008

David A. Temeles, Jr. writes:

> A plaintiff must demonstrate: (1) that it has suffered an irreparable
> injury; (2) that remedies available at law, such as monetary damages, are
> inadequate to compensate for that injury; (3) that, considering the balance
> of hardships between the plaintiff and defendant, a remedy in equity is
> warranted; and (4) that the public interest would not be disserved by a
> permanent injunction.

In the view of most open source software authors, permanent
injunctions would be a poor second choice to specific performance, and
either of those are probably worse (on the bases of time and cost
expended) than getting companies to comply voluntarily.

The various GPL enforcement cases that have been won under civil law
regimes (in particular, those by Harold Welte and gpl-violations.org)
have been successful in getting companies to comply with the GPL's
copyleft provisions.  I do not know if that is because of court orders
on the issue or because the companies faced ever-increasing fines if
they did not follow the license.

US efforts have also been successful at getting companies to comply
with the GPL's copyleft terms:

To a great extent, the proof is in the pudding, not in mailing list
pondering about enforceability.  There are more pertinent questions
about applying open source licenses than whether they are enforceable
in general; companies have shown a willingness to act as if they are.
The interesting questions focus on narrower questions such as
Tivoization, copyleft versus dynamic linking, and so forth, but
whether those are on-topic for this list is questionable.

Michael Poole

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