As seen on slashdot, the US Court of Appeals for the Federal Circuit has reversed a lower court decision and has upheld the Artistic License. This is important for Perl because Perl itself is under the Artistic License. Therefore the lower court decision that the Artistic License is subject to almost no legal protection would have been bad for Perl. However it is worse than that, if the previous legal reasoning had become a precedent applying to other open source licenses, then open source licenses would become essentially useless in the USA.

The technical details rest on an argument about the difference between a "covenant" and a "condition". In short, Kamind downloaded and copied code that was licensed under the Artistic License, without following the terms of the Artistic License. (Then Kamind filed for a patent based in part on functionality from that code, then sued the original project for violating the patent, but let's not get too far into the gritty details.) When challenged on this in court they claimed that the Artistic License was so broad that the code was essentially public domain, therefore no copyright case exists. And all that they can then be sued for is the implied contract with the copyright holder, the total damages for which are the cost of the software, namely zero. In legal terms the terms of the Artistic License are covenants of the contract, and not conditions of the license.

This reasoning would say that the Artistic License gives anyone the right to do anything they want with Perl's source code with no repercussions in the USA. If this reasoning got applied to other licenses, it could be bad for other open source licenses, like the GPL.

The lower court bought this strange reasoning. The higher court did not. The higher court said that the terms of the license really are conditions, and therefore violation of the terms puts Kamind in violation of copyright law.

As Lawrence Lessig says, this is huge and important news for the open source community.

I have a very minor connection with this case. In January 2007 I saw an email from Bob Jacobsen on license-discuss@opensource.org about the lawsuit. I contacted various people at The Perl Foundation pointing out that it was relevant to us, then Allison Randal got involved and put him and his lawyer in contact with people who could help.

Update: I sent personal congratulations to Bob and Allison and found out from both that Allison's role in this result was larger than I had known. Which reminds me, again, that she does a lot more than people in the Perl community realize, and doesn't get appreciated often enough for it.

In reply to Artistic License upheld by court by tilly

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