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Openistas are celebrating a major court victory over a legal spat involving model railroad hobbyists that will have big implications for the Creative Commons license.

The US Court of Appeals for the Federal Circuit in Washington ruled that just because a software programmer freely gave his work away, it didn’t follow that it could not be protected.

According to details outlined in the ruling (pdf), Robert Jacobsen had written and then released code under an Artistic License (an open source or public license) that requires other people who use it to attribute the author, flag up the original source of the files and explain how the code has been modified.

Jacobsen, who manages open source software group Java Model Railroad Interface, accused commercial software developers for the model train industry – Matthew Katzer and Kamind Associates Inc – of a breach of copyright.

He claimed they ignored the terms of the Artistic License by copying certain materials from his website and incorporating the code into a software package that programs the chips that control model trains, without giving appropriate credit.

The appeals court agreed that Katzer and Kamind had violated those terms and, in turn, infringed the software’s copyright.

Jacobsen had originally sought an injuction to prevent Katzer and Kamind using the software, but the US District Court for the Northern District of California threw out his allegations. Yesterday, that decision was overturned by federal judge, Jeffery S. White in a move that free software advocates view has a landmark ruling.

Andy Updegrove, an attorney with Gesmer Updegrove LLP in Boston and regular commentator on software licensing issues, described it as a “big day in court for the FOSS Community”.

Larry Lessig, who is Professor of Law at Stanford university said it was a “very important victory”.

“In non-technical terms," he said. "The Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL [General Public License] and all CC licenses.

“Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.” ®

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