[NYTr] New Court Case Tests Gen Public License

[All the News That Doesn't Fit]

vnunet.com - 24 Sep 2007
http://www.vnunet.com/vnunet/news/2199312/legal-case-test-gpl-mettle


US legal case tests GPL's mettle

Is the open source licence a business contract or a copyright notice?

by Tom Sanders in California

The first US lawsuit over the General Public Licence (GPL) could
provide valuable clarification on the legal status of open source
software.

The Software Freedom Law Center filed a suit against Monsoon Multimedia
on 20 September over alleged violations of the GPL.

Monsoon allegedly bundled the BusyBox open source application with some
of its devices without providing the source code as required under the
GPL.

While BusyBox and Monsoon typically attract little attention from the
IT industry, the legal case is expected to influence the future of
other GPL software including the Linux operating system.

"Whenever legal rights are repackaged in some way, whether through a
new type of licence, as here, or the passage of a new law, such as an
amendment to copyright law, the need eventually arises to test what was
meant in court," Andrew Updegrove, a technology specialist at Boston
law firm Gesmer Updegrove, told vnunet.com.

Mark Radcliffe, a Silicon Valley intellectual property lawyer and
senior partner at DLA Piper, wrote in a blog posting: "This case will
be very important for the future of open source software."

The debate over the legal status of open source has intensified
recently. One camp, including the Software Freedom Law Center, argues
that the GPL constitutes a copyright agreement.

But Radcliffe maintains that the GPL is a contract between the
developer and its users, including consumers and device makers which
embed the code in their appliances. Licence violations should therefore
be considered as a breach of contract.

A decision for one or the other would have widespread legal
implications. Judges award monetary damages for breach of contract, but
do not always issue an injunction preventing the continued distribution
of the code.

Copyright infringement claims, on the other hand, almost always lead to
an injunction.

"Clearly, open source licensors would prefer to obtain injunctive
relief to require the licensee to comply with the terms of the
licence," said Radcliffe.

Although the GPL is lacking legal precedents, some can be found with
other open source licences. One such case involves an application for
controlling model trains.

The Java Model Railroad Interface is governed by the Artistic Licence.
In 2006 the project's backer got into a legal fight with KAM Industries
over licensing issues and an alleged patent violation.

A San Francisco judge ruled in August that the licence should be
considered as a contract. Although the ruling does not settle the GPL
discussion, Radcliffe argued that it "does suggest how courts will
approach the issue".

Sun Microsystems' legal battle against Microsoft over its Java
technology could also provide further insight.

Microsoft had licensed Sun's technology, but refused to subject its
implementation to certification testing in an apparent attempt to
undermine the standard.

The case was settled in January 2001 and ultimately led to Microsoft's
introduction of .Net as an alternative to Java.

A judge had ruled that Sun's licence should be considered as a legally
binding agreement rather than a copyright, and therefore denied Sun an
injunction.

Microsoft was forced to halt its use of the technology because of
alleged unfair competition.