Model Trains and Open Source Licensing

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Thanks to News.com blogger Matt Asay for pointing out Mark Radcliffe's post on a recent court decision that may, in Radcliffe's words, "deprive open source licensors of the ability to get... (an injunction) to stop violation of the terms of their licenses." Interestingly, the case deals with model train software and the Artistic License rather than open source software and the GPL.


Radcliffe doesn't go into the facts of the case except to say that they are complicated. (For those so inclined, however, he does include a link to the pleadings and the decision.) Among other things, the plaintiff argued that defendants violated the terms of the Artistic License by substituting their company name for the names of the original copyright owners in the train software's copyright notices.


The first element of the court's decision that is of concern to open sourcers, he says, is the ruling that the Artistic License is indeed a contract. Though the decision doesn't apply to the GPL directly, Radcliffe notes that it is at least an indication of the direction courts are moving in terms of license enforcement. It could also present a problem for the Free Software Foundation, he says, because they have long argued that the GPL is not a contract.


The second element of the decision that concerns Radcliffe is the court's ruling that "failure to include the copyright notices was not a 'restriction' on the scope of the license," which meant that defendants did not infringe the plaintiff's copyright. Thus, the court determined the plaintiff was not entitled to an injunction.


As for what he thinks about the decision, Radcliffe says:

I believe that this decision is simply wrong. The use of the term "condition" in the Artistic License should mean that the terms imposed are restrictions on the scope of the license....This decision, if upheld, will remove an important (and expected) remedy from open source licensors.