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Saving Open Source

The cause of free and open-source software (FOSS) dodged a bullet in August of this year. On August 13, the U.S. Court of Appeals for the Federal Circuit, known familiarly as "CAFC" among court watchers, made known its decision in a closely watched case that has immediate and far-reaching implications for anyone who writes or uses free or open-source software. Although Jacobsen v Katzer specifically upheld the Artistic License, the 12-page decision explicitly referred to Creative Commons and other copyleft licenses.

This case was the first real test in any U.S. court of the legal teeth behind open-source licenses. This alone makes Jacobsen v Katzer both important and interesting, but as with most legal cases, the story behind the story is also interesting. And here the case behind the case, and the software at issue, evoke themes that date to the earliest roots of free and open-source software back in the 1950s.

Jacobsen v Katzer

In 2006, Bob Jacobsen sued Matthew Katzer and his company Kamind Associates, alleging that Katzer had violated licensing terms for Jacobsen's Decoder Pro, a utility for controlling model railroad signals and a portion of his Java Model Railroad Interface (JMRI). Decoder Pro was released under the Artistic License, an open-source license. Kamind had, Jacobsen claimed, used the Decoder Pro software in his own Decoder Commander utility without documenting the changes or attributing the licensed software to Jacobsen, both of which would be violations of the license.

Jacobsen brought suit in the U.S. District Court for Northern California and sought, among other remedies, monetary damages and an injunction to stop Katzer from using the code.

The case seemed like a no-brainer: The code in the two utilities spoke for itself, Jacobsen's code was clearly covered by the Artistic License, and Katzer had clearly not followed the license requirements in releasing his utility.

So it was something of a shock, not just to Jacobsen but to the FOSS community generally, when the court handed down its decision. The court refused to issue the injunction and drastically limited the kind of monetary damage Jacobsen could recover, if any, for Katzer's violations.

The linchpin of the court's decision had to do with a legalistic nicety, the distinction between a covenant and a condition. Violating a condition of a license based on copyright violates the copyright, but violating a separate covenant that is added above and beyond any conditions of the copyright does not. The court decided that, because the Artistic License was extremely broad in its scope, not placing very many restrictions on the rights of a licensee to create derivative works from the software, the copyleft language in the license constituted a covenant outside the copyright itself, and the only remedy open to Jacobsen for violation of the covenant was recovery of monetary damages he had suffered from the violation.

Having to prove monetary harm from violation of software provided for free is not all that easy, and the court was saying that this was Jacobsen's only claim. Katzer had not violated Jacobsen's copyright.

The decision was a serious blow to free and open-source software. The whole idea of copyleft licensing is that a violation of the license is a violation of the copyright. The court's interpretation, making the defining conditions of a copyleft license merely extra covenants, would severely weaken the force of licenses, whether the GPL or Creative Commons or some other model of FOSS licensing.

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