Jacobsen v. Katzer/Kamind – Federal Circuit Upholds a Free Software License

As reported by Lessig and others, the Federal Circuit vacated and remanded yesterday a ruling by the Northern District of California which denied the copyright claims of an open source software developer for violations of the Artistic License. This is a landmark decision which is likely to influence all types of free licensing, including Creative Commons licenses and the question of enforceability of copyright claims upon violation of free licenses in general. Here are four quick points on the decision:

  • The court unequivocally held that free licensing dose not mean that no economic consideration has been received by the licensor, meaning that conventional contract analysis cannot be dismissed on the basis of lack of consideration. (p. 8)
  • In the words of the court "[t]he heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license." Here, the court emphasized the distinction between mere covenants and terms of license, holding that violation of contractual covenants did not “swallow” the license terms. As I read it, this roughly means that violation of the free license may theoretically constitute both a breach of contract and copyright infringement, and plaintiff’s causes of action stand independently from one another (to the extent preemption rules are not triggered). As a practical matter, plaintiff may be eligible for injunctive relief afforded by copyright infringement rules.
  • The court frequently cited to the acmici brief filed by Creative Commons, and it seems to me that (at least with respect to the the important points) the Artistic License and Creative Commons licenses are indistinguishable. In other words, the CC mechanism reverting back to conventional copyright rules in case the CC terms have been violated should be considered perfectly enforceable.
  • Defendants had an interesting argument. They proposed that the free software license actually protected a moral right of integrity (i.e., a prohibition on unauthorized alterations of the work) and not an economic right. Therefore, they argued that the claims raising out of violating the relevant terms were not covered by the federal Copyright Act. The court rejected these contentions, but interestingly referred to the all-times U.S. “moral rights” decision of the Second Circuit in Gilliam v. ABC, 538 F.2d. (2d Cir. 1976).

Overall, it is a very interesting and important ruling. Before closing, here is my favorite quote (pp. 12-13) :

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.


I have an intellectual property license with CC but fortunately my work has no or very little commercial value. If it were the case though I'd certainly be weary. It may be wise to incorporate more buffers into the CC legislation to protect others in light of this.

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