CivicActions

The United States Court of Appeals for the Federal Circuit -- the leading intellectual property court in the US -- has delivered a major victory to the Free and Open Source Software (“FOSS”) movement by explicitly holding, for the first time, that FOSS licensors are entitled to copyright infringement relief.

Under FOSS and similar licenses, people are free to use copyrighted works and even include them in their own products, but they generally must credit the original authors of the code and release their modifications under the same terms -- a cycle that's critically important for free software to continue improving.

The case, Jacobsen v. Katzer, involves an “open source” computer application that model-train enthusiasts use to program the chips that control their trains. The plaintiff, Robert Jacobsen, distributed the application, called Java Model Railroad Interface (“JMRI”), under the “Artistic” license offered by the Open Source Initiative ((http://www.opensource.org/licenses/artistic-license-2.0.php)).

The defendant Katzer admits it copied parts of the application and incorporated it into a rival product, and that it did so without attributing the source or making the modifications available. But it claims that it was entitled to do so because the application was distributed for free to the public. In the lower court proceedings, U.S. District Court Judge Jeffrey White in San Francisco ruled that the plaintiff could sue for breach of contract, but not for copyright infringement. This sharply limits the form of relief available to FOSS licensors. The Appeals Court reversed and vacated White’s ruling on Wednesday and returned the case to the district court for further action.

Most significantly, the Appeals Court held that the attribution terms in FOSS licenses are enforceable “conditions” (rather than contract “covenants”) on the use of the copyrighted work. When a user violates the condition by failing to attribute, the license disappears, resulting in a copyright infringement. This is the legal theory underlying the GPL, AGPL and all Creative Commons licenses used by CivicActions and many of its clients.

As a result, much of the legal murkiness surrounding FOSS licensing has been dispelled. FOSS licensors are now able to seek injunctive relief for alleged copyright infringement, just like distributors of non-free, proprietary software. Read the full opinion as a pdf attachment.

George Frost is a partner and General Counsel at CivicActions.