Posted by: Rowan | August 19, 2008

IANAL

I Am Not A Lawyer.

But this article on Stuff.co.nz caught my interest. It starts like this:

A US appeals court has ruled that the holder of a copyright to a computer programming code made available for free public download can enforce an “open-source” copyright license to control future use of the work.

The appeals court was considering an earlier ruling made in a district court. The earlier ruling was Jacobsen v. Katzer – it seems that Katzer had used some software written by Jacobsen and released under an Artistic Licence (Wikipedia), but had failed to comply with the terms of the licence.

The view of the district court seems to have been that because only a condition of the licence – but not the scope (does this mean the right to re-use?) – had been violated then the copyright itself had not been violated, although the ‘contract’ between the developer and the re-user may have been. And therefore that Jacobsen could not pursue Katzer for copyright violation, but could pursue a more limited breach of contract.

IANAL, but wouldn’t that kind of zero out the concept of open licences?

As a developer, you grant me a licence to freely use your code under non-arduous conditions, to which I agree. I don’t fulfil those conditions but I continue to use your code. Ergo that’s unlicensed usage, isn’t it? According to the district court’s decision, you could only pursue me for the event that led to the unlicensed usage – i.e. me breaking the agreement. And then only if you had the wherewithal to pursue a breach of contract. IANAL but that’s how it seems to me.

As it turned out, the appeals court overturned the decision. In the words of Lawrence Lessig, the driving force behind the Creative Commons licences,

When you violate the condition, the license disappears.

Which makes sense to non-lawyer me. There’s a usefully brief description of the legalities at Cio.com. And there’s some very interesting debate on Groklaw about it – there are some lawyers over that way, and keep an eye out for a contributor called Tolerance. The Beeb wrote an illuminating piece on it too.

As a techie, I reckon the most interesting part of this debate is the acronym itself, IANAL (properly coded, you’ll notice). I’m sure it will have a long and illustrious career, as acronyms go, before being safely retired. But I’d like to propose a new, alternative one. One that I feel is more meaningful to me.

TGIANAFL.

Go figure :-)

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