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US Court Scuppers Injunction Bid in Rare Open Source Case

Microsoft's gonna love this precedent because Microsoft bases its resistance to any GPLv3 limitation on its actions

Seems a federal court judge in San Francisco has denied the plaintiff in a copyright infringement dispute over software governed by the open source Artistic License the right to seek a preliminary injunction to protect against further infringement.

It is - given the rarity of such things - a first.

The August 17 ruling has provoked DLA Piper partner and pro bono OSI general counsel Mark Radcliffe - OSI, or Open Source Initiative, being the arbiter of what exactly constitutes an open source license - to blog that "this case was wrongly decided and if allowed to stand may deprive open source licensors of the ability to get a court order (an injunction) to stop violation of the terms of their license, an important remedy for breach of such licenses."

As Radcliffe explains, the defendant was hauled up before the bar for breach of the Artistic License - and charged with copyright infringement for acting beyond the scope of the license - because he removed the original authors' copyright notices and substituted his own company's name.

Seems the judge takes the license for a contract - a determination that the Free Software Foundation, the author of the GPL, the most widely used of the open source licenses, would argue with - and figures that not including the original copyright notices might have been a breach of contract, but it's not a "restriction on the scope of the license."

And since there was no restriction on the scope of the license, there was no copyright infringement.

Well, as you might imagine, Microsoft's gonna love this precedent because Microsoft bases its resistance to any GPLv3 limitation on its actions - like its patent-protection agreements with Novell, Linspire and Xandros - at least in part - on seeing the GPL as a contract it's not party to.

Radcliffe says, "Whether the violation of a license is a contract violation or a copyright infringement (it can be both) is very important, because licensors would prefer to obtain an injunction prohibiting the breach of the license."

What the counselor means is that the open source community has always assumed that in such circumstances injunctions would be theirs for the asking, avoiding the relatively fruitless corridors of contracts.

See, the typical remedy for contract violations under US law is damages - not injunctions - and since the software here is open source it would be kinda hard to assess conventional damages.

So you can see how this decision is kinda fundamental to the open source movement.

The specific software at issue in this case is the Java Model Railroad Interface (JMRI) and the action was brought by developer Robert Jacobsen, a physics professor at the University of California, against Kamind Associates and its principal, Matthew Katzer.

The bid for a preliminary injunction was only an initial maneuver. The actual trial is still a ways off and the judge could of course change his mind.

For the 11-page decision, see http://jmri.sourceforge.net/k/docket/158.pdf.

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.NETDJ News Desk monitors Microsoft .NET and its related technologies, including Silverlight, to present IT professionals with news, updates on technology advances, business trends, new products and standards, and insight.

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