Basis of Free Software Licences Upheld in US


As free software has been adopted ever-more widely, and its virtues increasingly recognised, there has remained one nagging worry: suppose the licences on which all free software is built proved impossible to enforce effectively? It's true that defenders of the GNU GPL – both the archetypal and most widely-used licence – have been successful everywhere they have taken those breaking the terms of that licence to court, but none of those cases examined the fundamental legal basis of the GPL, and by extension, all similar licences.

Until now. As the Creative Commons blog explains:

The United States Court of Appeals held that “Open Source” or public license licensors are entitled to copyright infringement relief.

The Court of Appeals for the Federal Circuit (CAFC), the leading IP court in the United States, has upheld a free copyright license, while explicitly pointing to the work of Creative Commons and others. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract remedies.

Creative Commons founder Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.” Lessig said the ruling provided “important clarity and certainty by a critically important US Court.”

Today’s ruling vacated the district court’s decision and affirmed the availability of remedies based on copyright law for violations of open licenses. The federal court noted that ignoring attribution requirements contained in the license caused reputation and economic harm to the original licensor. This opinion demonstrates a strong understanding of a basic economic principles of the internet; attribution is a valuable economic right in the information economy.

This is important because it establishes that the novel approach invented by Richard Stallman with the GNU GPL – to use the limitations imposed by copyright to grant freedom – is legally valid, in the US at least. Had the court refused to accept this approach, it is not too much to say that the entire edifice of free software would have been put at risk, since the remedies available to projects would have been far weaker, and less of a deterrent to those breaking licences. Let's hope other courts around the world see it the same way.

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