Copyright Protection for Open Source Software
Yesterday, the Federal Circuit issued a ruling in Jacobsen v. Katzer et al., No. 2008-100, 2008 WL 3395772 (Fed. Cir. Aug. 13, 2008). The ruling vacated a decision by the district (lower) court, which had held that the remedy for violation of an open source license was limited to breach of contract. [Decision]
In Jacobsen, the defendants (a software developer and his company) copied portions of the plaintiff’s open source software without complying with the terms of the accompanying license (Artistic License). The plaintiff sought a preliminary injunction against the defendants. The district court denied the request for the injunction. It held that the plaintiff did not have a claim for copyright infringement, only for breach of contract.
On appeal, the Federal Circuit found that the plaintiff had stated a potential claim for copyright infringement. Specifically, it looked to the language of the Artistic License, and found that the terms were conditions – rather than mere contractual covenants – and that the defendants’ violation of those conditions exceeded the scope of the license. It also reiterated the long-standing recognition of the economic motives inherent in public licenses, even when the products released under those licenses are made available without charge, and profit is not immediate. The court ultimately remanded the case to the district court to determine whether the plaintiff had satisfied the other requirements for obtaining a preliminary injunction, and if so, to issue the injunction.
Jacobsen is significant because it expressly recognizes a claim for copyright infringement with respect to violations of an open source license. Such a claim allows an open source developer to seek an injunction and statutory damages, instead of the monetary damages available for a breach of contract claim (which are often difficult to prove, especially with respect to open source projects). While Jacobsen is limited to the Artistic License (which is only one of many open source licenses), and other open source licenses, such as the various Creative Commons licenses and GNU General Public License, must be interpreted according to their own respective languages, Jacobsen provides some much-needed teeth to those distributing their work under an open source license.
Software development companies should take this opportunity to review their development procedures with their programmers. It is not unknown for programmers to ‘borrow’ existing code (whether open source or not) as a shortcut in the software development cycle. While such shortcuts may save substantial time and money, the company must ensure that it is aware of all ‘foreign’ code in its products, and that it complies with all licenses governing such code.
