Well, with the recent talk from SCALE8x and Karsten's wish for further understanding of the legal environment of open source, I figured that I would comment on some old news that people may or may not be aware of, the Court of Appeals for the Federal Circuits 2008 ruling in Jacobsen v. Katzer. Interestingly, the case was recently resolved with a settlement in favor of Jacobsen (the OSS author)
This is a seminal ruling that copyright law is enforceable in open source software, and that open source licenses are valid legal constructs. The license in question was not the GPL, but rather the horrid (and unacceptable for Fedora) Artistic License version 1.
The central question for the Federal Circuit in this case was whether or not the conditions specified in the license were conditions of, or merely covenants to, the copyright license that was granted via the Artistic License. If they were conditions to the license, i.e. a copyright license does not exist if you don't follow X, Y, and Z, then you have a claim under copyright law. If there are covenants to the license, then the remedy for violation is found under contract law. This is an extremely important distinction, as the Ninth Circuit has held that irreparable harm is presumed and injunctive relief is appropriate in the case of copyright infringement, however not in contract disputes.
The district court held that there was no cause of action under copyright law, and Jacobsen appealed that decision to the Federal Circuit.
How this case came to the Federal Circuit is in and of itself an interesting topic, considering that the Federal Circuit normally only hears patent case. After Jacbosen contacted Katzer, Katzer came back with a claim of patent infringement, which Jacobsen challenged by seeking declaratory judgment on copyright grounds. Since the case arose under patent law, the Federal Circuit has appellate jurisdiction over the entire case.
The Federal Circuit in the decision recognizes the importance of open source - "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 that few could have imagined just a few decades ago". They then go on to say that open source software, while money may not change hands at the moment of licensing, should not be presumed to have no value. This is important because copyright law exists to preserve economic interests, not personal rights - as Katzer points out, US law currently has no concept of moral rights, and copyright law seeks to "vindicate the economic, rather than the personal rights of authors"
The Federal Circuit also properly recognizes the need for injunctive relief, particularly in the case of open source projects - "these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief."
There is one important question remaining from all of this, and an article (not publicly available, unfortunately) in the Texas Intellectual Property Law Journal (17 Tex. Intell. Prop. L.J 335) raises the question of when is something a covenant, and when is it a condition, something that the courts have not specifically addressed. One of the issues raised is whether the anti-DRM provision of GPLv3 is a covenant or a condition - the author posits that as it now stands, it is a covenant to a contract, not a condition of license. Through a simple wording change, they could theoretically make it a condition - but should this be allowed?
One view is that conditions should only be allowed, that based on their violation, would trigger copyright infringement. This calls into question many sections of the GPL, particularly the reciprocation requirements - if you do not release source to your modifications, you are not violating any copyright, but rather a provision of a contract. Injunctive relief is rarely granted in contract cases, therefore the GPL becomes much less effective, as I mentioned the earlier important of an injunction as opposed to monetary relief, which is difficult at best to determine in the case of OSS.
The second view is that any clause in a license, through proper wording, can be made into a condition. This approach is supported by Jacobsen, as the decision frequently makes use of the word "control", and this shifts control very much into the favor of copyright holders.
The author agrees that the second view seems correct, as even though it shifts power in copyright law to the licensor, it also allows new and innovative business methods to flourish, such as open source itself. One quote from the article caught me as particularly salient - "open source licensing serves the core purpose of copyright: increasing the creation and distribution of works".
In conclusion, we now have case law stating that open source software licenses, even poorly written ones, have the force of law, and "The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition."
Yay Federal Circuit!