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Breach of Conditions in Free and Open Source Software Licenses May Constitute Copyright Infringement

Author: Evan Berquist

Appellant Jacobsen holds a copyright for computer software designed to control model trains that he made available free of charge to the public, subject to the requirements of a public license called Artistic License v. 1.0. The Artistic License allows licensees to copy, modify and distribute Jacobsen’s software, provided that the enumerated conditions are satisfied. Katzer copied and modified certain files from Jacobsen’s distribution, but failed to satisfy conditions requiring him to describe how the files had been changed, and requiring him to include the licensing information in his redistribution. The court below, the United States District Court for the Northern District of California, had denied Jacobsen’s motion for a preliminary injunction, holding that Jacobsen’s allegations, if true, amounted only to a breach of contract, not copyright infringement, in part because the license at issue was “intentionally broad.”

The Federal Circuit, applying Ninth Circuit law, vacated and remanded, holding that breach of the license terms at issue constituted copyright infringement, because the failure to satisfy the conditions in the license constituted acts outside the license’s scope. The court noted that the case turned on the distinction between “mere covenants,“ for which contract remedies are available, and conditions to the license, for which copyright remedies are available. The court found that the Artistic License clearly stated that the terms at issue were conditions, by expressly providing that “the intent of this [license] is to state the conditions under which a Package may be copied,” and by using the phrase “provided that” to denote each condition.

In holding that public license agreements that specifically enumerate conditions to the license may be enforced in copyright, the Federal Circuit clarified and strengthened the enforceability of such agreements. The court also noted that enforcing conditions in public licenses through copyright law protects the legitimate economic rights of public licensors, which are not always pecuniary, but rather can relate to driving traffic to the copyright owner’s web site, informing downstream users of the project that created the original software, encouraging collaboration on the project, and ensuring that the license agreement travels with the work. The court’s opinion noted the widespread use and importance of open source agreements, which facilitate efficiency and innovation in areas as diverse as music, software, servers and educational curricula.

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