Recent case law, although not directly on point, nevertheless provides support for this reading of the statute. In Jacobsen v. Katzer,[1] Jacobsen released copyrighted software code under the so-called Artistic License,[2] a FOSS-type license[3] that permitted copying, modification, and reuse of the software subject to attribution and copyleft conditions.[4] Katzer copied Jacobsen’s code into his own software without complying with the terms of the Artistic License,[5] and Jacobsen sued for copyright infringement.[6] Katzer argued, and a federal district court agreed, that his breach of the terms of the Artistic License gave rise to liability, if at all, only for breach of contract, not for infringement of copyright in Jacobsen’s software.[7] Reversing, the Federal Circuit held that the Artistic License was a valid copyright license and that if the licensee failed to honor the conditions stated in the license, then the licensee could no longer claim to be entitled to exercise the rights granted therein.[8] Although the Court of Appeals’ opinion considered only the terms of the Artistic License, its reasoning has been thought to validate
the enforceability of other open-content licenses as well.[9] If open-content
- ↑ 535 F.3d 1373 (Fed. Cir. 2008).
- ↑ The language of the applicable version 1.0 of the Artistic License is available at The Perl Foundation, Artistic License 1.0, http://www.perlfoundation.org/artistic_license_1_0 (last visited Mar. 30, 2010).
- ↑ Revision 1.0 of the Artistic License was not approved by either the FSF or OSI. See supra note 48 (noting those organizations’ lists of software licenses that have been found compatible with their respective principles). Subsequent revisions brought the license into compliance with both the FSF’s and OSI’s principles. See The Perl Foundation, Artistic License 2.0, http://www.perlfoundation.org/artistic_license_2_0 (last visited Mar. 30, 2010). This later revision of the license was not at issue in Jacobsen v. Katzer. Nevertheless, even the earlier version of the Artistic License was clearly aimed at building a commons of freely reusable expressive works, and in that sense it may be recognized as a FOSS-type license notwithstanding its deviations from some of the principles enunciated by the FSF and OSI.
- ↑ This is a slight, but inconsequential, oversimplification. The actual conditions attached to the Artistic License 1.0 are quoted in the court’s opinion. See Jacobsen v. Katzer, 535 F.3d 1373, 1380 (Fed. Cir. 2008).
- ↑ Id. at 1376–77.
- ↑ Id. at 1375–76.
- ↑ See Jacobsen v. Katzer, No. 06-CV-01905, 2007 WL 2358628 (N.D. Cal. Aug. 17, 2007), rev’d, 535 F.3d 1373 (Fed. Cir. 2008). Interpreting open-content licenses as imposing mere contractual obligations has been recognized as problematic on several fronts, ranging from the difficulty of demonstrating assent by the licensee, to problems involving the existence of consideration, to the difficulty of ascertaining damages in the event of breach where the underlying work was given away for free. See, e.g., Asay, supra note 95, at 285–86; González, supra note 47; Kumar, supra note 50, at 16–24; Wacha, supra note 95, at 457–59, 481–83. But cf. Gomulkiewicz, supra note 73, at 346 (“There seems to be a mistaken belief that things are either licenses or contracts when, in fact, most of the time, they are both contracts and licenses—that is, contracts that contain licenses.” (footnotes omitted)).
- ↑ See Jacobsen, 535 F.3d at 1381–83; see also, e.g., Gomulkiewicz, supra note 73, at 340–43 (describing the case); Michael J. Madison, Notes on a Geography of Knowledge, 77 Fordham L. Rev. 2039, 2056–57 (2009) (same).
- ↑ See, e.g., Baker, supra note 95, at 787 (labeling Jacobsen a “landmark case”); Gomulkiewicz, supra note 73, at 346 (noting that Jacobsen confirmed the enforceability of FOSS licenses and the availability of injunctive relief in the event of breach); Vetter, supra note 85, at 2089–90 (“If the district court’s analysis in Jacobsen v. Katzer had remained, it would have undermined a foundational premise of FOSS licenses.”).
