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Copyright Ruling For Open Source: Good And Bad News?

The other week, the open source community enthusiastically welcomed a court ruling that set a strong precedence for open source licensing. Not everyone was enthusiastic, though. Among the cautionary dissenters is Michael P. Bennett, partner, Wildman Harrold (Chicago). To Michael, it's a two-edged sword that can harm as much as it can help.

In a prepared statement released earlier in the week, Michael put it this way:

As a result of this  ruling, it is much more likely that courts will treat future violations of open source licenses as copyright infringement, and that they will grant injunctive relief to copyright holders seeking to enforce their rights under those licenses.

Plaintiffs now have a ready-made argument that violations of the conditions of open source licenses should be treated as copyright infringement and accused infringers will have to face the prospect that shipment of their software or products containing software alleged to infringe an open source license could be instantly stopped by injunction.

I got in touch with Michael and asked him a few further questions:

Q: As I understand it, the case in question established that a copyright infringement case can be brought against someone who violates an open source license. Is your reading of it that anyone who feels they have a copyright infringement case against a given piece of OSS can create real problems for the authors of the software -- making this, in effect, a two-edged sword?

A: In some ways, open source software is like any other software. Authors of OSS must take care in how they create their software. In any dispute, there will be important facts that affect the rights of the parties. Was the copied code expressive? Was it functional? Was it distributed? Like anyone else, if an OSS author copies another author's work, the copier could be sued for infringement. The bottom line is that all authors, OSS authors included, must take care.

Q: The open source community has a history of attempting to negotiate with potential violators first, rather than resort to legal action immediately. Do you think this would change that?

A: Recently, both domestically and internationally, some elements of the open source community have been more aggressive in pursuing disputes in courts. For years there were no cases dealing with substantive open source issues. Recently, seven cases have been filed in the U.S alone. Many important questions remain related to OSS and there are always risks for both parties when pursuing resolution through the courts.

Q: Most of the existing OSS licenses use copyright (as opposed to Creative Commons / "copyleft") as part of their methodology. Do you feel this ruling might compel a rethinking of this?

A: Copyright is the basis for all open source license models. This decision should prompt companies who use or distribute OSS to carefully evaluate each piece of licensed intellectual property they use or distribute and establish a proactive licensing compliance plan. Some companies will be comfortable using "copyleft" software, while others won't. The important thing is that each company thoughtfully evaluates its options when licensing new software, whether it be permissively licensed open source software, "copyleft" software, or a traditional commercial software.

I'll definitely have more to say about this subject shortly, but for now I'm curious to see what the readers think.

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