The IPKat has a bit of a thing for US copyright law today. He has learnt from that the Federal Circuit Court of Appeals has held in Jacobsen v Katzer that an open source copyright licence can be enforced under copyright law, rather than merely under contract law. The claimant made software available for decoders for model railways from his website. The defendant used and modified the software but failed to comply with the licence in the following ways:
His software did not include
(1) the authors’ names,
(2) the claimant’s copyright notices,
(3) references to the COPYING file,
(4) an identification of the claimant as the original source of the definition files, and
(5) a description of how the files or computer code had been changed from the original source code.
The District Court held that this was a breach of contract, which did not give rise to a right to an injunction.
The CAFC recognised:
The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties.
The terms of the licence were classed as ‘conditions’ on the scope of the licence rather than ‘covenants’, which meant they were governed by copyright law, and enforceable as such. On its literal wording, the licence referred to ‘conditions’. Moreover, the fact that money didn’t change hands in return for being allowed to use the copyright work didn’t mean that the restrictions weren’t copyright restrictions. According to the court:
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.
The IPKat welcomes this case, as it should make authors more likely to make their work available to the public if they know that it will be protected copyright, and not just contract. He notes that the same distinction may be relevant in the