Why the JMRI decision matters

Copyright lawyer: "No. That will be $3000.00 for research time."

But one of the many implications of this case is that it will probably be easier to use the US Customs Service to seize products with GPL-violating embedded code.

You are required to accept a unilateral license only if you want to do things that are forbidden by copyright law but which are permitted by the license.

You may have missed the essence of the acceptance distinction between contract and license. There's a legal concept of accepting a contract. Acceptance is an identifiable event -- a court can determine the moment that it happened. It's something the acceptor does, such as writing his name on a piece of paper or clicking a mouse, that indicates the acceptor's intent to form a contract. There is no such acceptance of a license. You aren't required to accept one ever. You can't reject one.

if you redistribute the software, then you are either violating copyright law or you accepted the license.

The End User License Agreement, which is a contract in which the user promises things in exchange for a copyright license, obviously touches both worlds.

As bojan says, the important part of the decision is where the Federal Circuit (Court of Appeals) ruled that Jacobsen's licence (AL 1.0) qualified as a grant under copyright law, irrespective of its merits when considered under contract law. That's important because then plaintiff can ask for "court of equity" remedies (injunctions, court orders), whereas contract claims support only "court of law" remedies (economic damages). Please see further explanation of these two distinct bodies of law, if interested.

So, required elements of contract were actually not at issue in this case. However, had they been, you would have, in my view, been overinterpreting those of privity and consideration. (This happens over and over, in discussions among computerists.)

The requirement of privity of contract is really just a bar to holding to a contract, or granting contract enforcement rights to, people who never participated in the offer or acceptance -- third parties who didn't pose the offer or the acceptance. There is no requirement in contract law that the actual offerer or the actual acceptor ever meet, exchange e-mail, etc. Contract formation can occur entirely through conduct that establish the offer and acceptance separately.

Consideration, as you say, gets found rather easily. It is essentially anything that can be reasonably found to have non-zero value, including foregoing of a right or assuming of an obligation that one doesn't otherwise have.

Rick Moen
rick@linuxmafia.com
(IANAL, but survived many business law classes, back in the day)

While I always have to bite my tongue in these discussions because I'm not a copyright lawyer, I am a contract lawyer, so I can effectively argue the other side here. I believe all the open source copyright licenses could be made indisputably contracts with only slightly different wording. (For example, substitute "A and B agree ..." for "A grants to B ..."

I don't see lack of privity. The parties to the dispute are actual parties to the contract; you can't get any more privity than that.

And I see plenty of consideration, of the regular kind -- no need to resort to detrimental reliance. Consideration by the author is permission to copy. Consideration by the distributor is giving people the source code and all that. Giving people source code must be of value to the author or he wouldn't have tried so hard to get the distributor to do it.

Here's a settled contract scenario that is similar to what goes on with free software:

I publish in the newspaper an offer to pay $100 to anyone who works a four hour shift at any local charity. So you work a shift. You and I are parties to a contract, your consideration is the work you did, mine is the $100, and I owe you $100.

Someone who takes up a restrictive licence and is bound by it ...

How does that work for GPL though ? Where is the economic interest?

The court found that there is an economic interest in the Artistic license, and the arguments they used would be apply to the GPL too. The relevant portion of the judgement:

Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public licenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir. 2001) (Program creator "derived value from the distribution [under a public license] because he was able to improve his Software based on suggestions sent by end-users. . . . It is logical that as the Software improved, more end-users used his Software, thereby increasing [the programmer's] recognition in his profession and the likelihood that the Software would be improved even further.").

On Jon's comments regarding copyright license v. contract: contracts also require a consideration -- a payment of something of value -- which is difficult to reconcile with the "free beer" aspect of FOSS. Because this is a grey area (contract consideration is usually simply financial), precedents vary widely between countries and building an international free software movement upon contract law would be much more difficult than using copyright law.

You should not be worried. Consider this sentence:

> "There are substantial benefits, _including_ economic benefits, to the creation and
distribution of copyrighted works under public licenses that range far beyond traditional
license royalties."

The key word above is "including". So, the court sees that economic benefits are just part of
the copyright holder's interest here.

So, to answer you question: "What happened to a copyright being the right to prevent copying,
period." - nothing. It still there, alive and well.

PS. In case you are wondering what those other, non-economic benefits of doing FOSS may be,
I'll mention just a few: "being smart bragging rights", "being a nice guy rights", "supporter
of community rights", "betterment of humanity rights" etc. All these things are important to
these copyright holders and the court knows that.

Because since 1978 the public domain ceased to exist?

> The only benefit confered by a copyright monopoly is that of society receiving (eventually)
another work in the public domain.

And for society to receive that benefit, copyright holders are equally promised benefits
coming their way, through the power to exclude.

> Yes, but, as above, why should the court care?

The court cares because the state promised copyright holders would get the benefits, whatever
they may be.

The only benefit confered by a copyright monopoly is that of society receiving (eventually)
another work in the public domain, you say.

That's not actually true. If it was, there would be no reason to have copyright at all for
software. The eventual benefit, another program in the public domain in a hundred years (give
or take a few decades) has essentially zero value. 

But there is one benefit more; copyright stimulates (or is meant to, anyway) the CREATION of
creative works. The theory goes, if we didn't have it, less books would get written, less
software created. Having the book written is beneficial to society -- even before it falls in
the public domain.

We're paying a much too high price though. Does anyone HONESTLY believe that much less
software would get created if copyright was only, say 20 years ? I sure as hell don't. If we
could get the same for a lower price, why then, do we persist in paying the higher price ?
It's just downright silly.

Additionally, the author of the software is mentioned in the copyright notice when you license something under the GPL, just not in the license itself. You write "Copyright 2008 name of author", and provide a pointer to the GPL, so you are actually mentioning your copyright claim (under recent case law regarding abandoned copyrights, this is actually fairly important, because it means that it's harder for someone to prove that they went through reasonable steps to contact the copyright holder before treating something as if it were abandoned).