The past concerns about the terms in the Artistic License are that there could be disagreement about what the terms say, and that there are ways to follow the terms and get a result the license obviously doesn't intend. In other words it is not legally drafted very well. But there is no concern about how clearly it is spelled out that the license to copy depends upon those terms.
None of that is applicable here. Both parties agreed on the terms. They agreed what they meant. They agreed that Kamind had failed to satisfy them. Their disagreement was over what recourse was available. Kamind's position was that they had violated the covenants of a contract. In short, "We agreed to the license, then we didn't carry out our penalties. But we had permission because we agreed. We just didn't follow through." The contract didn't lay out penalties. Therefore damages were limited by California state law to money lost - which was nothing.
The judgment handed down says that the terms of the copyright license were conditions, not covenants. So violation of them puts you in violation of copyright law. The judge found the license clear that it offered conditions, not covenants of a contract. Right in the preamble it says, "The intent of this document is to state the conditions under which a Package may be copied". The terms are in a section labeled Conditions. And conditions should mean conditions.
The Artistic License 2.0 is no clearer than this that its conditions are conditions, not covenants. The GPL is admittedly clearer - it says that the result of violating the license is that your license is terminated. However if you accept the principle that open source licenses have covenants, not conditions, then it isn't far from that to saying that the GPL offers covenants, but I never agreed to it, so the penalties offered in the contract I never accepted do not apply to me. Admittedly the result would completely violate any common sense reading, but the law isn't about common sense. It is about using a web of precedent and established principles to achieve the result you want.
Now if that's not scary enough, there was worse. One of the arguments that Kamind used was that since the software was given away to all for free, there was no possible economic value to the software. Since copyright law in the USA only defends the possible economic value, there was no possible copyright case to be made. This reasoning, if accepted, would have torpedoed the GPL. Not only did the court not accept this line of argument, but they made it very clear in their decision that there can be economic value without money changing hands. That part of the decision reads more like an advertisement for open source than a legal judgment. I've heard that that part of the judgment was copied from one of the legal briefs, and that section was originally written by Allison Randal. Which explains why it is so pro-open source. :-)
In reply to Re^2: Artistic License upheld by court
by tilly
in thread Artistic License upheld by court
by tilly
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