open source and copyright

I was intrigued by the title of this artlce in Wired News (which was by way of AP): “Court says copyrights apply even for free software”

Sounded intriguing. Particularly the intro, where it stated that “[i]n a crucial win for the free software movement, a federal appeals court has ruled that even software developers who give away the programming code for their works can sue for copyright infringement if someone misappropriates that material. Interesting, though surprising, since I was of the understanding that it was long settled that software, whether open source or otherwise, was subject to copyright.

I then started reading the article’s analysis of the decision:

Because the code was given away for free, thorny questions emerge when a violation has been discovered and someone is found to have shoved the code into their own for-profit products without giving anything back, in the form of attribution and disclosure of the alterations they made.

Hmmm. That doesn’t sound quite right, as that implies that the fact that there wasn’t a price for the code (or rather the right to use the code) is what gave rise to dispute. In other words, it suggests that because you haven’t paid, the obligation to attribute and disclose alterations may not necessarily be enforceable.

So I decided to take a quick peek at the case. Not quite right. The developer, in this case, was trying to get an injunction (a court order that forces the other party to stop doing something, failing which they get thrown in jail). In order to get an injunction, the person seeking it must show that if the court doesn’t grant it, they will suffer “irreparable harm”. Usually, the burden will be on the person seeking it to demonstrate. However, there is US case law that basically says that in the case of copyright claims, irreparable harm is presumed (subject to certain conditions). In other words, it makes it quite a bit easier to get an injunction.

So, the applicability of copyright in this case was of primary importance as it would determine whether or not the developer would be able to get an injunction, not “because it’s easier to recover monetary damages in a copyright-infringement case” as the article states.

Anyway, it turns out what was at issue in the case really had nothing to do with whether or not the software was open source, or whether or not there was a price associated with it. Instead, it was focused on the very fine (as in detailed-oriented rather than nice) distinction between a condition in a contract and a covenant.

The way a license works is that it grants to the user, through a contract, certain rights to use, copy, etc. the software, but only those rights. So, if you don’t have a contract and use or the software, then you don’t have any rights to do so. That would be a violation of copyright law. Similarly, if you exceed the rights granted to you, that would also be a copyright infringement.

Finally, we come to conditions. Another word that is often used to describe these are provisos. These are things in a license that are tied to the grant of rights – in other words, if you don’t do them, then you don’t have the rights. Its like the “if… then” structure in programming. If you do A, B and C, then you can use the software. And of course, if you don’t, you can’t. Sometimes also worded like this: “You can use the software, provided you do A, B and C”. The effect then, is that if you don’t do A, B and C, then you don’t have a right to use the software. And if you don’t have the right and you use it anyway, then once again you will be infringing copyright.

The “heart” of the case, as the court described it, wasn’t whether or not the software license was paid for or not, but rather whether or not certain obligations to attribute the software to the developer and provide modifications were conditions or rather merely covenants. The distinction is important because a covenant is an obligation that is not tied to the license grant. In other words, if you don’t perform a covenant, you don’t lose your rights to use the software. Sure, you are in breach of the software license, and can be sued for damages, but the key difference is that you are not infringing copyright, since it is not tied to the grant of rights to use the software.

In this case, the defendant was saying that the obligations they breached were only covenants. Therefore, no copyright violation. Therefore, no presumed irreparable harm. Therefore, no injunction. The district court agreed with this.

However, the court of appeal corrected this. Perhaps not surprising, given that the license in question had language such as

The intent of this document is to state the conditions under which a Package may be copied.

The court of appeal further remarked that

The Artistic License also uses the traditional language of conditions by noting that the rights to copy, modify, and distribute are granted “provided that” the conditions are met.

In short, the decision has less to do with open source and more to do with contractual interpretation – in this case, the distinctions between conditions and covenants. The same dispute could have just as well arisen for typical commercial software.

So is this a “crucial win” for the open source community? No, probably not. However, it does serve to illustrate the importance of clear and well-drafted licenses. If you are a developer and want to make sure your software cannot used without the licensee doing certain things, your license must clearly identify those things as conditions.

Almost forgot – for those so inclined, a link to the case (PDF).

Update: I was surprised to see that Lawrence Lessig commented on this same case as being “huge and important news”. Which to me is somewhat surprising, given my comments above. In brief, he noted:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. 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.

However, the issue – at least the one that seemed to be argued on appeal – was not whether or not free or open software licenses per se could attract copyright violation if they were not adhered to, but rather the more pedestrian question of whether the obligations in the license in question actually constituted conditions as opposed to covenants. Hmmm.

Further update: I had pulled this post for a while because time and time again I kept reading how this was a big win for open source and was rethinking the above. While I certainly think the appeal decision was the right one, I don’t think this should be thought of as a big win for open source, since the findings would seem to apply to any license – i.e. its somewhat like celebrating a victory for bicycle riders because a judge has found that all wheeled vehicles are legal in a case that happens to be about a bicycle being illegal. Anyway, I do plan another post on this one, but more on the reactions and analyses that I’ve been reading rather than the decision itself.