Model Trains and Open Source Licensing, Part Two

Lora Bentley

Remember when I first wrote about model train software and open source licenses? It was almost a year ago that Mark Radcliffe voiced a warning about this case, saying the district court's decision could very well keep open source software developers from enforcing the licenses under which they released their work.


From Radcliffe's blog:

The plaintiff alleged a number of causes of action, but the most important was the alleged breach of the Artistic License (and copyright infringement for acting beyond the scope of the license) due to the removal of all of the original copyright notices to the original authors...


The [district court's] decision makes two important points: (1) the Artistic License is a contract and (2) the failure to include the copyright notices was not a "restriction" on the scope of the license.

Fortunately for Radcliffe and other open sourcers, however, the ruling was appealed, and the appellate court decided differently. InformationWeek reported Thursday that the U.S. Court of Appeals for the Federal Circuit decided "open source users that do not comply with the software's strict licensing terms can, in fact, be sued for copyright infringement -- even if the software is free."


And the icing on the cake? The judge also decided the software developer was entitled to sue for money damages for the infringement. The court said:

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.

The appeals court sent the case back to the trial court for further consideration.

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