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August 14, 2008

Late yesterday, the Court of Appeals for the Federal Circuit issued its final decision in the case of Jacobsen vs Katzer. That case was the first real acid test of the remedies for breach of open source licenses in U.S. courts.

However, the District Court decision was wrong and in a way that could have been a real disaster for the open source community.

The District Court found that the requirements in the Artistic License for notice were merely a contractual 'covenant' rather than a condition on the scope of the license.

U.S. courts sometimes use the word "restriction" on the scope of the license and "condition" at other times, but they have the same meaning. Consequently, under the District Court's analysis, Katzer's actions were not copyright infringement.

This means that Jacobsen was limited to the traditional remedy for breach of contract, monetary damages, rather than the copyright remedy of injunctive relief. Injunctive relief means that the court will order Katzer to comply with the terms of the contract.

Nonetheless, the Court of Appeals for the Federal Circuit (CAFC) reversed the District Court's decision and its reasoning is extremely helpful for the Linux and open source community at large!

The court found that the limitations in the Artistic License were "conditions" on the scope of the license and, thus Katzer was still liable for copyright infringement, as well as breach of contract... The CAFC noted that the Artistic License imposed its obligations through the use of the words "provided that" which is generally viewed as imposing a condition.

Although the reasoning is limited to the Artistic License and the interpretation of each open source license will depend on the wording of its provisions, this decision is a welcome change to the District Court decision.

The case has been remanded for the District Court to determine if the other criteria for injunctive relief have been met, but the CAFC's decision strongly suggests that they have been met.

The open source and the Linux community should thank the lawyers who worked hard and on a pro bono basis (i.e. free) to achieve this victory.

Any such list is bound to be incomplete but the major contributors were:

Victoria Hall (Jacobsen's counsel)

Chris Ridder

Anthony Falzone (Creative Commons counsel)

Karen Copenhaver

Allison Randal

Roberta Cairney

Larry Rosen

Scott Peterson

David Gross

Steve Chiari

As it's almost always the case in similar legal matters, there are nay sayers that think this isn't a big deal when it is. The open source and Linux community stand to gain immensely in yesterday's court decision and it's almost assured that there will be more cases such as these to come forward.

Source: Tech Blog.

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