The Court of Appeals for the Federal Circuit in the Robert Jacobsen case has reversed a decision of the United States District Court for the Northern District of California concerning whether the Artistic License can receive injunctive relief or merely contractual monetery compensation in the merit case. Because Artistic License does not demand monetary compensation, the distinction almost equals to enforceability vs. non enforceability of a Free Software (open source) license.
The core of the case was to decide whether the conditions of use of the copyright license are merely covenants or actual conditions for the use of copyrighted material under a Free Software license. The Court of Appeals decided that monetary nature is not essential to find whether there is consideration in a copyright license. Consideration can be found in any other economically valuable benefit, including raise of reputation or the ability to receive upgrades or error correction from the downstream market. Therefore, if the licensing conditions are not intentionally too broad to receive some of this “retribution in kind” back, the violation of the conditions of the license is a copyright violation and there must be copyright relief, including injunctory relief where all other conditions are met.
The reasoning of the Court is important also to draw a distinction between two different kinds of license: permissive and restrictive. Permissive licenses are those like the BSD that only require that attribution of authorship is maintained in the very code as authored by the initial distributor. Those license do not bring other obligations, such as that of including a complete set of source code for any object code distribution. These license can be found not deserving injunctory protection. Conversely, restrictive licenses require that the downstream distributor comply with some sort of obligation in exchange of the right to distribute (and/or modify) the code. Notably, these obligation are particularly strict in the copyleft licenses, which impose that also derivative are maintained under the same license as the original. The restrictive Free Software licenses are — according to this line of authority — deserving injunctory relief.
This is the most important decision in the USA concerning Free Software (open source) licenses, and yet again it finds for the enforceability of the same at the same level as proprietary licenses. It is reasonably safe to infer that this judicature will influence the already shallow discussion about the enforceability worldwide.
A copy of the decision is available here below.
Groklaw has — obviously — a quite in-depth article with an interesting discussion citing Lessig and Updegrove.