Open Source Gets Copyright Protection

In a landmark ruling, a federal appeals court agrees that open source software should have copyright protection — even thought it's given away freely.

You might never have given a thought to copyright on open source software. After all, anyone can use it, right? Well yes, but as a federal appeals court ruled yesterday, that’s no reason it shouldn’t qualify for the copyright protection known as Artistic License.

It all revolves around a case involving model railroads. Yes, model railroads.

Robert Jacobsen, who manages open source software group Java Model Railroad Interface, had written and issued some code under an Artistic License. Under that, anyone using the code has to acknowledge the author, show the original file source and how they’ve been modified.

But Jacobsen had filed suit against a commercial software developer, Matthew Katzen, accusing him of ignoring the artistic license by taking his code and using it to develop commercial software for trains.

A lower court hadn’t agreed, saying he might only be able to claim breach of contract. But Jacobsen appealed, and in his decision Judge Jeffery White wrote:

"Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted materials."

"Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace few could have imagined just a few decades ago."

The ruling impacts the Creative Commons license, used by academic institutions, under which work can be protected and still enter the public domain. Creative Commons entered an amicus brief on Jacobsen’s behalf, and its general counsel, Diane Peters, told the BBC:

"This opinion demonstrates a strong understanding of a basic economic principle of the internet; that even though money doesn’t change hands, attribution is a valuable economic right in the information economy."