[NetBehaviour] A Big Change for Open Source.

marc garrett marc.garrett at furtherfield.org
Sat Oct 4 15:06:32 CEST 2008

A Big Change for Open Source.

By Bruce Perens.

An appeals court has erased most of the doubt around Open Source 
licensing, permanently, in a decision that was extremely favorable 
toward projects like GNU, Creative Commons, Wikipedia, and Linux. The 
man who prompted that decision could be described as the worst enemy a 
Free Software project could have. This is the story of how our community 
was able to benefit from that enemy.

For a decade there'd been questions: Are Open Source licenses 
enforceable at all? Are their terms, calling for a patent detente or 
disclosure of source code, legal?

Are they contracts, which require agreement by all parties to be valid, 
or licenses, which are binding even if you don't agree to then? What 
legal penalties can a Free Software developer employ: only token 
damages, or much more?

The court's ruling makes the answers to these clear. Did such weighty 
questions come up in cases involving IBM, Sun, HP, or Red Hat? No, this 
is the quirky world of Free Software: it was a court case about model 

The reason for so many questions about Open Source licenses was simple: 
there weren't any court cases about them, so nobody could say with any 
confidence how a judge would rule. The few cases that did start up never 
reached a verdict, because the parties settled their dispute and kept 
the details of their agreement secret.


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