Court: Open source licenses are copyright licenses

In Uncategorized on January 22, 2010 at 5:07 am

Originally posted 8/24/2008

By Richard Koman

Open source licenses create a condition on the scope of the license – and thus expose violators to injunctions under copyright law – the Court of Appeals for the Federal Circuit ruled yesterday. The decision in Jacobsen v. Katzer (PDF) reverses a District Court holding that the a violation of the license (most importantly, “removal of all of the original copyright notices to the original authors and the substitution of Katzen’s company’s name,” as Mark Radcliffe described last August) was a mere contractual violation not a copyright infringement.

(The case involved model train control software; the image above is from Katzer’s bogus patent app.)

The appellate court found that Katzen’s actions were copyright violations and thus Jacobsen could seek injunctive relief, not mere money damages.
Radcliffe explains:

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.

Lessig perhaps makes the concept clearer:

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

And from the decision itself:

Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. 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. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.


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