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While this is only a very preliminary holding in a district court case dealing with only one flavor of open source license, it is still very important to the open source community since there is currently a dearth of judicial opinions regarding open source licenses, and this interpretation may very well influence future readings.

Interpreting open source licenses as contracts removes the possibility of injunctive relief preventing license violators from further copying, modifying and/or distributing source code. Such a remedy is available for copyright violations, but not contract breaches.

For broken contracts, the remedy is damages - whatever it would take to put the plaintiff in the position he would have been in had the contract been fully performed. Since this is usually money, many providers of open source software would get the shaft, since they don't expect any remuneration for the copying of the software.

The possibility does exist that the court in this case will eventually determine that Jacobsen is entitled to specific performance of the defendants' obligations under the license. In other words, the court could order the defendants to insert the attribution into the license that they distribute with their products. Courts generally shy away from this solution, however, though the court may determine that it is an equitable remedy here.

This might represent the best possible outcome, since it would allow open source licensors to enforce the terms of their licenses, while at the same time eliminating the possibility that open source distributors could shut down useful derivative projects through injunctions by claiming a copyright violation as a result of a breach of the license's conditions.

Despite the possibility of specific performance, Mark Radcliffe - a senior partner at DLA Piper, General Counsel of the Open Source Initiative, head of the "Users" committee reviewing the GPLv3 draft, and general Silicon Valley heavy-hitter - calls the judge's decision "simply wrong" in a posting to his blog, "Law and Life: Silicon Valley".

Radcliffe argues that "[t]he use of the term 'condition' in the Artistic License should mean that the terms imposed are restrictions on the scope of the license," and points to language in an earlier decision in a suit between Sun and Microsoft over the Java license stating that restrictions on scope often carry language such as "subject to" or "conditioned upon."

The decision, if upheld, will take away a vital remedy from open source licensors, according to Radcliffe. He recommends that the open source community get behind Jacobsen in a push to have the decision reconsidered.

But not all experts agree. Evan Brown, a technology and intellectual property attorney with Hinshaw & Culbertson LLP in Chicago, and author of the cyberlaw blog, InternetCases.com, thinks that the judge properly distinguished between copyright and contract law here. "Even people who practice copyright law and software licensing lose sight of that distinction," Brown says. "I don't really see the error in the court's reasoning."

Brown does say that it's too early in the case to determine whether or not the judge has crafted entirely good law, because the case is still in its early stages and there is currently a shortage of judicially determined facts.

But with the experts in disagreement over the basic law governing the suit, and courts around the country possibly looking to the holdings for future guidance, this lawsuit over little railroads could turn into a major trainwreck for open source licenses, whichever way it turns out. ®

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