Conditions in Open Source Artistic Licenses Limit Their Scope. Discuss.

[WSJ_law_blog]

Listen up techies! Judge Jeffrey White, of the Court of Appeals for the Federal Circuit, gave code-heads a lot to chew on today with his ruling in Jacobsen v. Katzer.

First, we must come clean. We didn’t know this case existed until we stumbled across Proskauer’s New Media & Technology blog, where partner Jeffrey Neuburger wrote: “There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling . . . in Jacobsen v. Katzer easily goes to the top of the charts of this small category. This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.”

We’re going to take Neuberger’s word on it, and also borrow his breakdown of the central issue in the case: Whether the conditions in the open source Artistic License limit the scope of the license (in which case a failure to comply with them constitutes copyright infringement) or whether those conditions are merely covenants. Or, as the Federal Circuit puts it: “We consider here the ability of a copyright holder to dedicate certain work to free public use and yet enforce an open source copyright license to control the future distribution and modification of that work.”

The result? The appeals court held that the conditions of the Artistic License are “enforceable copyright conditions.”

Here’s the money passage:

Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. . . .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 winning lawyer: Victoria K. Hall, a solo practitioner, for plaintiff-appellant.

R. Scott Jerger, of Field Jerger, repped Katzer.