A federal court of appeals held in 2008 that an open source developer case sue for copyright infringement despite the breadth of the open source license. The closely-watched case recently settled, meaning that the opinion may well be cited for many years to come.
Plaintiff Robert Jacobsen holds a copyright to certain computer programming code that he makes available for public download for free pursuant to the Artistic License, an open source license.
Defendants Matthew Katzer and Kamind Associates, Inc. develop commercial software products for the model train industry and hobbyists. Defendants copied certain materials from Jacobsen’s website and incorporated them into one of their software packages without following the terms of the Artistic License. Jacobsen sued for copyright infringement and moved for a preliminary injunction.
On appeal from denial of the injunction, the Court of Appeals for the Federal Circuit held, in Jacobsen v. Katzer, that Artistic License provisions were conditions of a license granted under Jacobsen’s copyright. By breaching those conditions, defendants infringed Jacobsen’s copyright.
The parties recently settled the case, the settlement agreement obligating the defendants to pay the plaintiff $100,000. With the settlement, Jacobsen v. Katzer will not be subject to appeal and, given the dearth of open source case law, probably will be considered a leading case for some time to come.
Significance for open source developers: Alleging copyright infringement, instead of or in addition to breach of contract, can be valuable because it is a comparatively quick and easy route to statutory damages and an award of attorneys’ fees, in addition to an injunction. See Copyright Registration: Whether, When and Why.
Significance for proprietary software developers: Be sure that your license terms state that restrictions on use are conditions of the license, and not merely covenants to be performed by the licensee.
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Recent development in another case:
On April 25, 2017, the U.S. District Court for the Northern District of California held in Artifex Software, Inc. v. Hancom, Inc. that a developer that made software available under the GNU General Public License could bring suit alleging both breach of contract and copyright infringement against a defendant that breached the GPL license terms.
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Dana H. Shultz, Attorney at LawÂ +1 510 547-0545Â dana [at] danashultz [dot] com
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