Free Software and Enforcement of Copyright

The United States Court of Appeals for the Federal Circuit recently considered the issue of open source software copyright infringement in the case of Robert Jacobsen v Matthew Katzer and Kamind Associates Inc., (doing business as KAM Industries) (No 2008 – 1001, August 13, 2008). At issue was whether failing to comply with the terms of an open source license could result in an award based on copyright infringement, the open source software being given away for no charge, or whether the remedy was limited to breach of contract. The plaintiff in the case had made software available to the public subject to the terms of an open source license. Users were allowed to modify and distribute the software, so long as a copy of the license and the names of the copyright owners were included with all distributed copies. The defendant incorporated the plaintiff's software into commercial packages, but did not include the license terms or name of the copyright owner, as required by the open source license. The plaintiff argued that the violation of the terms of the license constituted copyright infringement. The defendant argued that there could be no claim for copyright infringement as copyright law does not recognize a cause of action for non-economic rights, and the plaintiff has offered the software to the public at no charge. The District Court, which first considered the issue, agreed with the defendant and concluded that liability for copyright infringement could not exist in an open source license. In a closely-watched and significant appeal, the US Court of Appeals for the Federal Circuit reversed the judgment of the District Court, holding that the lack of money changing hands in open source licensing should not be presumed to mean that there was no economic consideration involved. In the Court's view, there was non-monetary consideration that took the form of compliance with the open source license requirements and speculated that open source license restrictions might otherwise well be rendered meaningless if there was no ability to enforce them through injunctive relief. The Court held that the license created conditions that governed the use of the software and that were designed to protect the economic rights in the granting of a public license and held that the license conditions were enforceable copyright conditions. The Court noted that the requirement to disclose the names of the copyright owners in all copies of the software can result in substantial benefits such as increased product markets and beneficial boosts to reputation. For a copy of the reasons for judgment, visit: http://www.cafc.uscourts.gov/opinions/08-1001.pdf Summary by: Sue Diaz