Court clarifies open source copyright: Key excerpts for the enterprise

It's a big day for open source software as a U.S. District Appeals Court ruled that just because a developer gave code away for free doesn't mean it's not copyright protected.
Written by Larry Dignan, Contributor

It's a big day for open source software as a U.S. District Appeals Court ruled that just because a developer gave code away for free doesn't mean it's not copyright protected.

The win, which stemmed from a railroad hobbyist spat, was praised by Stanford's Lawrence Lessig. The details can be found in the court ruling and all the analysis on Techmeme, but what you really need to know is that the ruling makes open source licensing legit. Copyright concerns have been a big overhang for enterprises. I'm no lawyer, but it sounds like this ruling is essentially an all clear bell for enterprises that rely on free software. If you have open source systems you may want to hook up with your corporate counsel/licensing guru to determine what it means to you.

Bottom line: All enterprises will have to do is pay programmers in attribution--giving credit where it's due and sticking to the open source licensing rules. The good news is that there seems to be some licensing structure that's legally valid. What follows are the key excerpts from the ruling:

Key excerpts:

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate.


The conditions set forth in the Artistic License are vital to enable the copyright holder to retain the ability to benefit from the work of downstream users. By requiring that users who modify or distribute the copyrighted material retain the reference to the original source files, downstream users are directed to Jacobsen's website (a party in this spat). Thus, downstream users know about the collaborative effort to improve and expand the SourceForge project once they learn of the "upstream" project from a "downstream" distribution, and they may join in that effort.


Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.

As noted before it's time to call corporate counsel to see how this ruling applies to your systems.

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