There’s very little case law around Open Source software licenses, but this week we’ve seen an interesting case involving the Artistic License, under which Perl is distributed.
The decision makes two important points: (1) the Artistic License is a contract and (2) the failure to include the copyright notices was not a “restriction” on the scope of the license. The first point is important because the Free Software Foundation and some lawyers have taken the position that open source licenses are not contracts. They have good reasons for wishing to avoid some contract formalities, but this position has complicated discussions about the enforceability and remedies for open source licenses.
The second point is very important because it deals with remedies. Generally, the remedy for contract violations under US law is damages, not “injunctive relief” (which means that the court order a party to cease their violation). On the other hand, copyright infringement generally includes a presumption that injunctive relief is appropriate. Thus, the question of whether the violation of a license is a contract violiation or copyright infringement (it can be both) is very important, because licensors would prefer to obtain an injunction prohibiting the breach of the license.
As pointed out in the article linked above, this decision in relation to the Artistic License doesn’t apply to other licenses. This will no doubt have some bearing on how Perl chooses to use the Artistic 2.0 license.
An article on use Perl asks:
- Could the same thing happen under the Artistic 2.0 or Will further revisions to the Artistic license be required?
- Should adoption of Artistic 2.0 wait until Perl 5.10?
However, as a District Court case, this decision only applies in California — admittedly a very influential place in the tech world, but we can still hope that this decision, which many see as a bad one, will be overturned in a higher court.