No, you've mixed up some issues. The Artistic License was discussed in the claim of the plaintiff. You're saying "The defendant is claiming...". That's something different. The court has not ruled on that yet. They ruled on a particular claim of the plaintiff. People are complaining about the court throwing out the copyright infringement claim because the defendant hasn't infringed on anyone's right to copy. It's not that the defendant is right, just that nobody else lost the right to copy. The court has not ruled on claims of the defendant in this regard.

I've already read the various blogs, including the Law & Life in Silicon Valley. More importanly, I've actually read the entire complaint and the entire preliminary ruling. If you read the original documents, you get a much different picture than what people are saying.

When you read the ruling, you'll see that the court did not say that the Artistic License is a contract, but that the claim was not covered by copyright law, and might be covered under contract law. That's where the lawyer you mention bends the truth a bit. Since license compliance was not a claim of the plaintiff, the court did not and could not rule on that.

Also, I'm not sure why you think I don't understand that the defendant removed copyright attributions. I say that in the use.Perl post rather clearly, and point to the relevant part of the Copyright Act. That's not an infringement of the plaintiff's right to copy though (the claim made to stop harassment by the defendant). That's a wholly different matter, which is the defendant's right to copy.

Update: You talk about Count Eight. The court did not discuss Count Eight in its preliminary ruling, so it hasn't made a decision on that. The Artistic License is discussed in the dismissal of Counts Five and Ten. As I've repeated many times, the court has not decided this case, it's merely ruled on some of the motions. Read the very first sentence of the ruling; it's not about Count Eight. You're talking about something completely different than the actual ruling, which you should read. Really. Read it. Once you've read the ruling, compare what it actually says to what you are saying.

I'm not sure where in Count Eight: Violation of Copyright Laws, #107 of the amended complaint filed 2006-09-11, where injunctive relief is claimed as a right, and requests M, N, O, P, and R fail to say that it is a violation of copyright and to ask for a ruling of injunction.

In fact, the party using a license to copy a work (in this case, it would appear that's the defendant) has no right to copy the work and distribute those copies except as granted by the license. If the license does not grant that right, it is the sole right of the copyright holder to make and distribute copies. Therefore, if the defendant is making and distributing copies for which he has not been granted license, he is in fact infringing on the rights of the copyright holder.

This is much the same as someone coming into my home uninvited. It does not keep me from entering the home, but it does violate my exclusive right to grant access only to those whom I choose. I this case, the plaintiff chose to invite everyone who followed the terms of the license to share in his legal access to distribute copies, but that should not mean he has no control over keeping violators of the license from infringement on his rights.

So in the long and short of it, am I to understand that the whole mess JMRI is going through is because they made an assumption that it was clear from the text of the license and the actions of the defendant that there was a breach of the license and therefore copyright infringement, when the plaintiff should have plainly stated that as part of the complaint? Am I still overlooking something?

brian_d_foy said:

When you read the ruling, you'll see that the court did not say that the Artistic License is a contract, but that the claim was not covered by copyright law, and might be covered under contract law.

In the part of the ruling where the court denied the request for an injunction, didn't the court say that the copyright holder could not enforce copyright as such, but might (and _only_ might!) be able to enforce the license terms as a contract?

Since the Artistic License is the only license involved, it seems to me that this _is_ troublesome for the future of the Artistic License. It's much more difficult to enforce it via contract, isn't it?

I'm glad I didn't see this post earlier, because my response would have been much weaker.

My position about the original decision was that the judge got it wrong. If you've not met the terms of the copyright license, then you have no right to copy and it is a plain and simple copyright infringement case. This is the principle upon which a great number of copyright licenses are based, including very notably the GPL. However if I'd argued this back then, then I would have been arguing an uphill battle given that a judge came to the exact opposite conclusion.

Today I can make that exact argument but it is much stronger because, as I point out in Artistic License upheld by court, a higher court has issued a binding precedent saying that copyright law should be read the way that I think it should be read, instead of the way that you and the first judge think it should be read. Which I think is good. It means that people are able to make their software available for free but have their attached conditions be actually be enforced in the USA.

Even more importantly, the original precedent was not particularly binding on any other court, while the new decision has weight throughout the USA. Therefore the recent decision will be cited for many years to come. Hopefully it won't be cited in court very often for the simple reason that with a strong precedent, lawyers will advise clients to not bring lawsuits they will lose.

"It means that people are able to make their software available for free but have their attached conditions be actually be enforced in the USA."

I hope that continues to be the case and that it is also adopted by other countries and further it is not continually tested in the courts.