Friday, September 26, 2008

Jacobsen v. Katzer - Open Source infringment

In August, the Court of Appeals for the Federal Circuit issued a ruling (Jacobsen v. Katzer) that has been widely discussed as acknowledging the rights of developers of open source software. This opinion, while not necessarily binding in Minnesota, is helpful in illustrating important issues that relate not only to open-source software licensing and development but to general contracts that apply to everyone.

The dispute involved an open-source developer and a company that used the open-source code as a part of their own software. Despite a license that required that the open-source developer be credited and copyright information retained in subsequent use of the code, the defendant stripped out this information. The issue was whether failing to provide this information caused the subsequent software to be an infringement of the plaintiff’s copyright, or whether it was simply a breach of contract - the difference meaning considerably different remedies.

The opinion contained an extensive discussion on the importance of “conditions” verses “covenants” in copyright agreements. The court found that the language found in the agreement requiring that copyright information for the open-source developers be provided in subsequent iterations of the code was not simply a promise (covenant) to do something, but rather it was a conditional requirement for the license. The court also noted that while copyright law only protects economic interests (rather than moral rights), the requirement of attribution and copyright notification in open-source licenses is in fact related to the economic interest of promoting the open-source community and in promoting the services of many of its participants.

While this opinion is useful to illustrate many important principles, it must be kept in mind that it does not provide a blanket cause of action for infringement merely because software contains open-source code. What it does do is to show the importance of controlling the origination of code and providing appropriate attribution. Additionally, while not as clear in the opinion, businesses licensing software or other intellectual property should pay attention to the specific language and terms of the agreement, as it can be paramount in controlling whether the agreement is controlled under copyright law verses contracts.

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