If The Worst of Us Wins, The Best of Us Surely Will

Saturday 16 August 2008 by Bradley M. Kuhn

There has been much chatter and coverage about the court decision related to the Artistic License decision last week. Having spent a decade worrying about the Artistic License, I was surprised and relieved to see this decision.

One of the first tasks I undertook in the late 1990s in the world of Software Freedom licenses were issues surrounding the Artistic License. My first Software Freedom community was the Perl one, but my second was the licensing wonks. Therefore, I walked the line for many years, as I considered the poor drafting of the Original Artistic License. As the Perl6 process started in 2000, I chaired the Licensing Committee, and wrote all of the licensing RFCs in the Perl6 process, including RFC 211, which collected all the historical arguments about bad drafting of the Artistic License and argued that we change the Artistic License.

Last year, I was silent about the lower court decision, because I'd known for years that the Original Artistic License was a poorly drafted and confusing license. I frankly was not surprised that a court had considered it problematic. Of course, I was glad for the appeal, and that there was a widely supported amicus brief arguing that the Artistic License should be treated appropriately as a copyright license. However, I had already prepared myself to live with the fact that the my greatest licensing fears had come true: the most poorly drafted FLOSS license had been the first for a USA court to consider, and that court had seen what we all saw — a license that was confusing and could not be upheld due to lack of clarity.

I was overjoyed last week to see that the Federal Circuit ruled that even a poorly drafted copyright license like that must be taken seriously and that the copyright holder could seek remedies under copyright law. Now that I have seen this decision, I feel confident that the rest of our licenses will breeze through the courts, should the need arise. We've been arguing for a decade that the Artistic license is problematic, and even Larry Wall (its author) admitted that his intent wasn't necessarily to draft a good license but to inspire people to contact him for additional permissions outside the GPL. Nevertheless, he drafted a license that the USA courts clearly see as a valid copyright license. The bottom bar has been set, and since all our other licenses are much clearer, it will be smooth sailing here on out.

(Please note, if you are a fan of the Artistic License, the Artistic License 2.0 is a much better option and is recommended. Despite the decision, we should still cease using the Original Artistic License now that we have 2.0.)

Posted on Saturday 16 August 2008 at 13:35 by Bradley M. Kuhn.

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SELECT full_text FROM standard WHERE type = 'disclaimer';

Both previously and presently, I have been employed by and/or done work for various organizations that also have views on Free, Libre, and Open Source Software. As should be blatantly obvious, this is my website, not theirs, so please do not assume views and opinions here belong to any such organization. Since I do co-own ebb.org with my wife, it may not be so obvious that these aren't her views and opinions, either.

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Bradley M. Kuhn <bkuhn@ebb.org>