Monday, August 18, 2008

Open Licenses survive another court challenge

If you haven't heard yet, the case of Jacobsen v. Katzer has been overturned. The United States Court of Appeals for the Federal Circuit determined that copyright law was invoked by the Artistic License, and that breaking the Artistic License equaled breaking copyright law. There's been a couple different spins on the story so far, with Sourceforge probably having the best take on the matter:
There was much rejoicing by Dana Blankenhorn at ZDNet and Matt Asay at CNet, who considered it a great victory for open source. I think it is too. PJ at Groklaw had a different spin, though. She believes that the open source community pretty much dodged a bullet with this judgement, and needs to be a bit more savvy about license creation in the future.
I find myself siding with the Groklaw take. If the case had really been a simply and clear victory, there would have been no need for an appeal. The fact that the case went so far to begin with indicates how close the decision was to going against Open-Licenses. PJ's not exactly alone in her assessment of the state of Open-Licenses. Eric S. Raymond went into the aspect of Microsoft's own attacks on the terms of Open-Licenses on the Open Source Institute blog system, and even as recent as 3 years ago, as evidenced by a news posting involving HP, the OSI was working to limit the proliferation of Open-Licenses.

The simple fact is, many people working on their own projects have taken available licenses and re-written maybe one or two lines to get a complete new license. Just take a moment and browse the existing list of OSI approved licenses, then drop by the Free Software Foundation and read the list of Open licenses that are compatible with the GPL, and those Open Licenses that are not compatible with the GPL, and then the list of Closed-Licenses.

There's dozens of licenses that are available then, but they really only fall into six different classes, the five Open types clarified in a 2003 posting by Eric S. Raymond, and the sixth being a closed license.

From a historic perspective then, the potential legal crunch on Open-Licenses has been an overshadowing factor for years. There are multiple licenses in use that do qualify as being an Open-License, that probably won't hold up in court. While most analysts expect legal challenges against the Apache licenses or the GPL licenses due to their extremely large list of users, those aren't the licenses that a smart lawyer would go after. The lesser known Open-Licenses that haven't been written by lawyers will be the target for any successful legal challenge. The Artistic license quite nearly was that failed challenge.

While it's pleasant to read that the US Court System upheld the concept of Open Source through an Open License, it's worrying that it took an Appellant court to do so. It is possible that future court cases against Open Licenses could result in the first ruling that the
case of Jacobsen v. Katzer received. Open Source then isn't out of the legal challenges yet, and that's something I don't think some of the analysts covering the Jacobsen v. Katzer story realize.

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