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Analysis A dispute over some open source software used for model railroads resulted in an important decision last week, involving the scope of open source licenses and the remedies available when they are violated.

The decision has triggered alarm in the open source community, with a prominent open source licensing advocate charging that the court fell asleep at the switch in its legal analysis of the case.

The facts of the case are as twisted and convoluted as a styrofoam-mountain switchback track, but what Jacobsen argued for the copyright claim, essentially, was that Katzer and Kamind violated copyrights on JMRI Project decoder definition files by reproducing and redistributing versions of the software without including the attribution required by the open source license utilized by the JMRI Project.

On the basis of this claim, Jacobsen moved for a preliminary injunction to prevent the defendants from further distributing the software. A district judge from the US District Court for the Northern District of California denied the motion, however, arguing that Jacobsen's claims fell under the law of contracts, not copyright. Thus, the option of a preliminary injunction was unavailable.

The court held that Jacobsen had implicitly promised not to sue for copyright infringement by distributing the source code under a nonexclusive license. The license was subject to certain conditions - which the defendants may have violated - but any transgression was a breach of contract, not a copyright violation, according to the court.

The only way that Jacobsen could make out a claim for copyright infringement, the judge said, was to demonstrate that the defendants had exceeded the scope of the license and engaged in activities that the license did not purport to allow.

The court then determined that the JMRI Project's license was essentially unlimited in scope: the potential licensees could make copies, distribute copies, modify the software and even include it in commercial distributions. The only conditions were that the licensees had to include all the original copyright notices and associated disclaimers, and could not claim the product as their own.

Even though the defendants violated the conditions, the court said, they had not exceeded the scope of the license, thus there was no copyright violation.

To demonstrate the court's reasoning, imagine a license that allowed the copying of source code, but not its distribution. If someone copies and distributes the software, they have exceeded the scope of the license and would be liable for copyright infringement for the distribution.

If a different license, however, grants a licensee nearly all the rights that the copyright holder possesses under US copyright law - as the license here does - but attaches the condition that the licensee must stand on one leg and bark like a dog every time he makes a copy of the source code, then the licensee violates the conditions of the contract when he copies the source code while merely standing on one leg, but does not exceed the scope since he is engaging in a right that was granted under the license.

To sum up, the court made two important holdings concerning the open source license involved here: 1) it is a contract; and 2) the attribution requirement was a condition of the contract, rather than a restriction on the scope of the license.

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