A court reads open-source licensing the wrong way

Mark Radcliffe writes cogently on his blog about a recent court decision that may have wide implications for open source. It's not a software case.

It revolves around model trains. Curiouser and curiouser....

One of the frustrations of lawyers serving the open source industry is that they have few cases which interpret open source licenses. As Eben Moglen has pointed out, such cases are few because licensees need the license be in effect to avoid copyright infringement. However, with the increasing use of open source software, many lawyers believe that issues such as the scope of the license are likely to come before courts. The first example of these disputes arose in a decision published on August 17, 2007 in San Francisco regarding the Artistic License. Unfortunately, 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.

Mark walks through the merits/demerits of the case on his blog, and I'd encourage you to read it. In brief, the decision showcases how a court may read an open-source license (as a contract, this court found, which has important implications for the software industry) and how it would provide remedies for violations of an open-source license (damages, not injunctive relief, this court found).

I agree with Mark that the court came down on the wrong side of the decision. We need courts to correctly understand open source. This one mostly didn't, and it could be hurtful to open source.