Roberta Cairney

The US government filed its Statement of Interest regarding the revised Google settlement yesterday with the District Court in New York. While the statement was signed by an attorney from the Antitrust Division of the Justice Department, several agencies including the Copyright Office reportedly contributed to it.

As you may recall, the judge has only 2 choices: he can approve the settlement, or send it back to the parties for revision. He cannot modify it himself.

The US government statement advises the judge that the public interest would be best served by sending the settlement back, and points out that the revised version still suffers from the "same core problem" that afflicted the first version: "an attempt to use the class action mechanism to implement forward-looking business arrangements that go far beyond the dispute before the Court in this litigation."

The press reports that I've seen take the government's statement as an emphatic thumbs down.

The judge has scheduled a hearing for February 18 in his Manhattan courtroom.

It is very unlikely that the judge will approve this version of the settlement. Also, he may once again decide postpone a full-fledged fairness hearing-although the many objectors, large and small, are eager to have their day in court. Because the parties withdrew the proposed settlement before the originally scheduled fairness hearing occurred in October 2009, the judge has not yet formally considered the many objections filed to date on the revised settlement and filed in anticipation of the fairness hearing cancelled last October.

Bottom line for the long term: even if the judge sends the settlement back, and even if the parties agree to deadlines as short as the deadlines for this presumably ill-fated revision, there is no resolution in sight for the litigation.

Whether the case is tried or the settlement discussions continue, the legal end point will not be the trial judgment or settlement approval issued by the district court judge. The end point will be the disposition of the final appeal from that district court judgment or approved settlement, and that disposition is years away.

It's hard to imagine what relevance the final legal disposition would have then, as public and private innovators are not sitting on their hands, waiting for the judge to sort this out.

The U.S. Court of Appeal for the Federal Circuit has issued a wondrously clear and unambiguous opinion (pdf) that supports the enforceability of open source and public licenses. It is great news for user and contributor communities, and their lawyers.

The Back Story:

The software in the case is licensed under Artistic License 1.0, which was written by Larry Wall in the late 80s. The defendants allegedly copied the software into their own products without complying with key Artistic License requirements—they did not include the original authors’ names, copyright notices, references to the COPYING file, information about sources of the original files (e.g., SourceForge), or a description of how the original files had been modified.

The plaintiff asked the court for an injunction prohibiting distribution of the defendants’ products, arguing that by violating these license conditions, the defendants violated the copyright in the software.

In a nutshell (and omitting legal fine points), the decision under appeal denied the injunction, holding that copyright protection is not available for software distributed free-of-charge under an open source license.

This truly shocked the open source, free software, and public license community, and a coalition of groups led by Creative Commons filed a “friend of the court” brief (pdf) in support of the appeal. (In the interests of full disclosure—Allison Randal and I worked on the brief on behalf of The Perl Foundation.)

The Ruling:

The appellate court reversed the lower court’s decision in an opinion that open source lawyers have dreamed about but never thought that we would see.

The court paid tribute to the diversity and importance of the open source, free software, and public community:

“Public licenses, often referred to as “open source” licenses, are used
by artists, authors, educators, software developers, and scientists who
wish to create collaborative projects and to dedicate certain works to
the public…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.”

And after noting that “lack of money changing hands” does not equate to lack of economic value, it wholeheartedly endorsed enforcement of the Artistic 1.0 license:

“The clear language of the Artistic License creates conditions to protect
the economic rights at issue in the granting of a public license. These
conditions govern the rights to modify and distribute the computer
programs and files included in the downloadable software package. The
attribution and modification transparency requirements directly serve to
drive traffic to the open source incubation page and to inform downstream
users of the project, which is a significant economic goal of the copyright
holder that the law will enforce.”

Perhaps the happiest aspect of the opinion is the assured and sophisticated discussion of open source processes, projects, and economic value. Although the briefs filed by the plaintiff and by Creative Commons undoubtedly assisted the court’s analysis, it seems safe to conclude that the court was already aware of the significance of open source—yet another sign that the “movement” actually has come of age.