I feel quite excited seeing people claiming a big triumph of open source on the decision of the U.S. court ruling on Jacobsen v. Katzer case. However, after a closer examination I felt that this is, as Prof. D’Agostino described Robertson v. Thomson, a case where it is hard to tell winner from loser.
The facts were rather simple. To debrief, Jacobsen devised a program code and released it under an open source license, which Katzer’s company used to forge a competing software, violating the license. Jacobsen sued Katzer for copyright infringement. The district court held that the license terms are mere contractual covenants rather than copyright conditions, and found no copyright infringement. The Appeals Court, however, found the license enforceable as copyright license.
So, at first sight it is a clear victory of the open source license as it is unprecedentedly upheld as enforceable copyright license, which overrules many previous rulings including the pertinent Sun v. Microsoft. True, this alone is enough to claim victory, but only a limited one I would say.
The underlying issue is the different legal remedies under the U.S. law: injunctions for copyright infringement v. property damages for breach of contract. It is true that the Appeals Court held the open source license as an enforceable copyright license rather than a covenant, but it only required the district court to determine whether Jacobsen has demonstrated irreparable harm. The cream here is that in order for a successful motion for injunction, Jacobsen still needs to demonstrate the harms while the U.S. copyright law “does not recognize moral rights or provides a cause of action for their violation”, as was put through in Sun v. Microsoft. Still a challenge for open source in the US, and perhaps worldwide, is the difficulty to measure and prove the economic harms of violation, since open source basically does not include benefits for the author.
As I see it, creative and critical thinking is required of drafters for open source licenses to define general economic benefits of copyright holders and harms of violation for the licensed works in future versions to come. Indeed this is where an injunction is in need, for otherwise remedies for mere breach of contract would be enough to keep violations at bay.
To give some further thinking, given the previous unfavoring standings of U.S. case law, it is still hard to evaluate as how this single case will impact other open source licenses at large. Indeed the ruling is only applicable to the very license at issue, the Artistic License, and did not touch a finger on other bigger names such as GPL and BSD, not to mention the broader “open” copyright licenses such as Creative Commons. Besides, under a conflict law context, civil law jurisdictions such as Germany mostly interpret open source licenses as contracts. So, still too early to announce Open Source the Victor and play the trumpet, isn’t it?