A federal appeals court has overruled a lower court ruling that, if sustained, would have severely hampered the enforceability of free software licenses. The lower court had found that redistributing software in violation of the terms of a free software license could constitute a breach of contract, but was not copyright infringement. The difference matters because copyright law affords much stronger remedies against infringement than does contract law. If allowed to stand, the decision could have neutered popular copyleft licenses such as the GPL and Creative Commons licenses. The district court decision was overturned on Wednesday by the United States Court of Appeals for the Federal Circuit.
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Member since:2005-07-24
Exactly,
IMHO the license restrictions are a contract to be granted 'copy-left' usage rights. If the contract is violated, then there is also copy-right infringement, as no copy-left/usage rights had thus been granted.
The license, as I see it, is the barrier to any utilization of the code itself. Violation of the license is termination of access to the code, therefore further usage should be copyright infringement AND breach of contract. The contract, thus being violated, MAY need to explicitly outline punitives in the event of any given manner of breach.
Each section providing authorization SHOULD/must, therefore, directly state that said authorization is retro-actively withdrawn, and will be actionable within the bounds of the law in the given jurisdiction.
<SoftwareLicense>{
xxx Software License, Ver 1.2
Constitution of Contract and Parties:
...
Terms of Contract:
...
Authorization of Use:
...
Remedies in violation of terms of contract:
...
Legal mumbo-jumbo - jurisdiction limits, etc...
}</Software License>
Hope the law sees things a bit more like I see them, I provide strict controls to prevent, primarily, Microsoft from using the code I intend to eventually release as open-source. The current state would make my provisions valid, yet unenforceable - a sad state.
Of course, I actually intend on collecting actual signatures for some source-usage contracts, but then that really isn't open-source. With open-source I should be able to assign restrictions in one immutable contract ( per source version ), and have it stick. My only requirement would be to remain within the bounds of the law.
--The loon
Member since:2007-07-13
You say you wouldn't let Microsoft using the software? This is against the spirit of the Free Software Foundation. They say that anyone can use Free Software without restriction provided they observe the four fundamental software freedoms, even Microsoft. I know because I heard Richard Stallman talk (twice) on this yesterday.
To think the enemy is Microsoft is wrong. It is anyone who would remove the four fundamental software freedoms from anyone else. This include us free software lovers too if we are not careful! That is what makes us ethically different from Microsoft. If they gained enlightenment and truly respected software (and user) freedom then we should welcome them. Unfortunately, this is probably not in their corporate DNA (although individual Microsofties seem able to grok it).
Member since:2007-02-17
Sort of ... depends on what you mean by "use". If you mean just running the code then for FOSS code there are no restrictions. This is all that the vast majority of people and businesses actually just want to do ... run the code.
If you mean copying the source code then that is different. The source code is an original work of the author of the code and hence copying it falls under the regulation of copyright law. The default provision under copyright law is simply that "you may not copy without permission". Permission to make copies must come from the author/owner of the copyright.
Licenses are simply objective evidence of grants of such permission. All licenses have conditions, and are invalidated by breaches of those conditions. If you do not possess a valid license (either because you never obtained one, or because you obtained one but you violated its conditions) ... then you do not have permission to copy the work, and you are subject to the penalties as provided by copyright law.
Nowhere at all does any of the above rely on the exchange of money being involved in the aquisition of the license.
Edited 2008-08-15 05:47 UTC
Member since:
2005-12-15
Developers work must be protected from freeloaders.
There are rules for use, so follow them and there's no problem.