Open Source Licenses, Are They Enforceable?

I am not sure if this is good news or bad but recent rulings show that courts are increasingly more willing to uphold Open Source licenses.

Judge Dredd

I am personally ambivalent about software licenses and patents and the whole morass of “protection” instruments that have come up around software.  I worked at Bell Labs in 1981 or so when AT&T (the original Ma Bell) got the first software patent for the Unix “sticky bit” and the world has not been the same since then.

At least the Open Source licenses, I think, help restore a bit of the balance by protecting the right of software that wants to be Open to remain so.  At least, in theory.  In practice, given our precendence-based judicial system, new law legal instruments remain a hypothesis until tried in court.  Well, finally Open Source has hit the courtrooms and we are starting to build precendent.

In Fenwick & West‘s IP 2009 Summer Bulletin, they tell about a couple of recent cases, Jacobsen v Katzer and the BusyBox case, that show that “the courts are increasingly more willing to uphold these licenses.”

It’s too bad the article is not yet online because it is actually an interesting read.  (I’ll update the post as soon as I find a reference to the original article–leave a comment below if you know where to find it online.)

Jacobson vs Katzer

In the first case, Jacobson release its software under an “Artistic License.”  They didn’t ask for much: they just wanted anybody who used the code as part of their own software distribution to keep the original attributions to the authors of the software.  This is typical Open Source stuff and just plain courtesy.  But, no, Jacobson had to take Katzer to court to make them do so.  And they won!

According to Fenwick, the ruling accomplishes three objectives,

  1. It “legitimizes open source licenses… and gives licensors (and licensees) comfort in knowing that the arrangements under which they choose to license software can be enforced if litigated.”
  2. It “provides important guidance to licensors… to ensure that their licenses contain the ‘buzzwords’ a court will be looking for,” particularly phrases like “provided that,” or “conditioned on,” or “subject to.”
  3. “The result on remand is instructive” in that it makes it clear to licensors to “be prepared to demonstrate actual harm… if they desire injunctive relief.”

BusyBox

In this case, the makers of BusyBox required in their license “that redistributors of the BusyBox software provide end users with access to the BusyBox source code.”  Simple enough, yes?

Not so for seven of their distributors who would not even give BusyBox the time of day when they tried to discuss their concerns.  So, you guessed it, they took the seven bad guys to court and… settled.  But even then, the case was good for the Open Source cause.

In the end, the redistributors agreed to,

  1. Appoint an “Open Source Software Compliance Officer,”
  2. Publish the source code and inform their customers of its availability
  3. Pay an undisclosed sum to BusyBox

In one case, the redistributor “agreed to cease distribution of the offending article until the source code was published.”

Sweet!

Final Rant

The good of this is that Open Source licenses are now a step closer to being first class legal instruments.  The bad of it is that we need to go through all this nonsense in the first place.

For good or bad, software got to be very valuable too quickly for its own good.  I still feel that we should gone for another 20 years of experimentation without legal barriers.  Of all the legal barriers, patents are the worst because they grant a legal monopoly (for longer and longer periods).  Open Source licenses help restore the balance a little bit so it’s good that they’re becoming more “legit.”

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