Open Source Legal Ruling Means Monetary Damages for Copyright Infringement

I saw this yesterday, but needed to find an explanation I understood before writing about. Thankfully, my favorite lawyer on IP issues, Andy Updegrove (I met him when I consulted to OGC and he spoke at Directions Media’s Location Intelligence Conference in past years), is interviewed by Computerworld, so now I can explain it!

Here’s the case:

Kam Industries used some open source code that allows train folks to program chips in model trains. The code was released un an Artistic License. That’s not one I know much about - but it’s OSI approved and has a copyright from the PERL Foundation. That license requires users to “give credit to the author, identify the original source of the files and describe how the new code has been changed, among other conditions.”

The author of the code, Robert Jacobsen felt Kam Industries violated the terms and violated the software’s copyright. A requested injunction to stop Kam from using the software was denied in US District Court. The news this week: the US Court of Appeals for the Federal Circuit overturned the ruling.

The big deal: when infringement happens, the infringee (the holder of the license) can argue copyright copyright infringement not just breach of contract. Why’s that significant? Now to Mr. Updegrove:

That distinction is important, says Andy Updegrove, an attorney with Gesmer Updegrove LLP in Boston who studies licensing issues. Under contract law, the remedy is monetary damages, which aren’t likely to amount to anything involving open-source software that is given away, Updegrove says.

However, statutory damages - money awarded for a violation of law - can be awarded for copyright infringement without requiring proof of monetary damages, Updegrove says. Also, people can recover attorney fees for copyright infringement cases, he says.

“And, most importantly for licences such as the GPL, it means that your rights to use the copyrighted work at all disappear,” Updegrove says, referring to the General Public License, widely used for open source software.