By Peter Galli  |  Posted 2007-08-28 Print this article Print

-Source Licensing Suffers Setback in Court"> The remedy for contract violations under U.S. law is generally monetary damages, not injunctive relief where the court orders a party to stop the violation. Open source licensors would prefer to obtain an injunction prohibiting the breach of the license, he said. But the news is not all bad as the case is far from over. This motion was just for a preliminary injunction and to strike certain claims from the complaint.
"Next will come discovery, and maybe more motions, with questions asked in writing and orally to get to the facts. After getting new facts, the court may reconsider the conclusion. Next will come a trial and the judge may decide that, based on the additional fact finding, he was wrong initially," Radcliffe said.
But the case is a "watershed" for the open-source community as it marks the first time a US court has ruled on a request for an injunction to protect an open-source license. "Virtually all open source licensors assume that a court would grant injunctive relief for a breach of the terms of an open-source license rather than restricting the licensor to contract remedies of damages," said Radcliffe, who has also blogged about the case. In addition, by denying the plaintiff an injunction, the court has set "a dangerous precedent for enforcement of open-source licenses, because an injunction is frequently the only practical remedy for licensors since open-source software is provided for free and damages are very difficult to determine," he said. Microsoft says it is not bound by the GPLv3. Click here to read more. The fact that the defendants replaced Jacobsens name in the copyright notices in the original program with their own names, strikes at the core open source principle of giving credit to authors. "This is the little engine that could derail the expectations of many open source authors," Radcliffe said. He also voiced the frustration felt by many lawyers serving the open source industry due to the fact that there are currently few legal rulings in place that interpret open-source licenses. That situation is complicated by the increasing use of open-source software and the belief by many lawyers that issues like the scope of the open-source license will inevitably find their way to the courts. "The decision is a preliminary one and the case will continue. We hope that the court will change its holding," he said. "This case is one of the first examples of these disputes and, unfortunately, in my opinion, this case was wrongly decided. If this ruling is allowed to stand it could deprive open source licensors of the ability to get a court order, an injunction, to stop violation of the terms of their license, one of the most important remedies for breach of such licenses," Radcliffe said. The next step involves the parties submitting a joint case management conference statement to the court by no later than September 7, ahead of a case management conference on September 14 to set the timing for the rest of the case. "Nothing substantive is likely to be decided at this conference," Ratcliffe said. Check out eWEEK.coms for the latest open-source news, reviews and analysis.

Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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