Thursday, August 14, 2008

Appeals Court Ruling on Open Source License

I thought I'd take a break from my series of blogs on Neoplasms to discuss this week's (August 13) important court ruling that upholds open source licenses. I'm referring to the following:

United States Court of Appeals for the Federal Circuit
KAMIND ASSOCIATES, INC. (doing business as KAM Industries),
DECIDED: August 13, 2008

The entire ruling is available at:

Today's blog post is a layman's interpretation of the issues involved and the significance of the court's ruling.

Basically, software code taken from an open source application was used in a patented product, without citing the open source software as prior art. The copyright holder sued. The patent holder did not dispute taking some of the open source code, but insisted that the open source license was unenforceable and that he was within his rights to use the code for whatever he pleased. The lower court agreed, essentially invalidating the open source license.

The appeals court overturned the lower court ruling and upheld the legal standing of the conditions specified in the open source license. This ruling permits additional legal recourse to be taken by the open source copyright holder against the patent holder, but for the open source community, the importance of the ruling is that it upholds the legal validity of the conditions specified in the open source document (mostly, these are the requirements that pertain to maintaining the open source license for uses and redistributions of the original software, so that the software remains open source and available, and credited to the original copyright holder).

Why do some people think that the open source license has no legal validity? Basically, there is a long tradition that licenses and contracts and virtually all types of signed agreements, exist for some mercantile purpose. Agreements specify who owes what to whom. Some say that a license that gives something away for free is just a joke. There is no need for the courts to get involved in silly requirements imposed on people who are exchanging items that have no monetary value.

The requirements in an open source software license are called "viral inclusions," if they impose conditions that are transmissible from one user to the next user. If I allow Fred to use my software under a set of conditions that requires him to convey the same conditions on Sally, the next person who uses the software, then in effect, I have created a license between myself and Sally (without ever exchanging money and without having a meeting of the minds, with Sally). Some have claimed that the so-called "viral" propagation of license conditions is a legal absurdity and cannot be enforced.

Well, the open source advocates have had their day in court, and they have won their argument. It basically goes like this. People who use the open source license are using a new kind of legal device that serves their own valid interests and the interests of society. In addition, the open source license was created by very thoughtful and talented legal minds and is supported by legitimate public and private concerns (as evidenced by Amicus briefs entered for the proceedings) who would suffer losses if open source licenses were invalidated (i.e., the open source license supports mercantile efforts and is not just a give-away for software that has no value).

If there is no money exchanged, who benefits from an open source license? When a copyright holder distributes software under an open source license, she receives credit for the accomplishment from the user community, thus enhancing her standing, and her marketability, and contributing to a community effort that encourages others to do the same (so she can likewise benefit from software produced by her colleagues). The license specifies a set of conditions that makes the communal use of software possible while preserving copyright with the original creator of the software. The open source license is written to enforce certain rights and intentions of the copyright holder that benefit the copyright holder. Furthermore, those who do not like the conditions imposed in the open source license, are asked to contact the copyright holder to negotiate an alternate software conveyance (i.e., the open source license suggests a way to seek an alternate legal device to obtain use of the same software). If the courts were to invalidate the conditions imposed within the open source license, then the copyright holder would be hurt, and the communal effort to create open source software would quickly collapse, much to the detriment of society.

The Appeals court, in its published statement, recognizes the purpose and the validity of the so-called viral conditions imposed by the open source license.

This is my [layman's] interpretation of the ruling. I urge everyone to go to the original document and draw their own conclusions.

-Copyright (C) 2008 Jules J. Berman

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