Free But Still Subject to Copyright Infringement

The owner of free open source software can bring an action for copyright infringement when a party using the software does not abide by the conditions of the license, the Federal Circuit found.

Robert Jacobsen developed software and licensed it through an open source license. The license required that any future copying and modification of the software include his name, open source copyright notices and a description of how the file was changed. Another software developer used the open source software but did not follow the license agreement.

Jacobsen sued for copyright infringement. The District Court found that not following the license was a breach of contract but not copyright infringement. The appellate court reversed.

“Public licenses, often referred to as ‘open source’ licenses, are used by artists, authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public,” the Federal Circuit explained. “Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined a few decades ago.”

The appellate court found that the “lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however.” The appellate court stated that the requirements in the open source license were conditions for the license agreement. If the conditions were not followed, then the holder could sue for copyright infringement.

“It is outside the scope of the Artistic License to modify and distribute the copyrighted materials without copyright notices and a tracking of modifications from the original computer files,” the appellate court wrote. As a result, Jacobsen could maintain an action for copyright infringement.

Robert Jacobsen v. Matthew Katzer, U.S. Court of Appeals for the Federal Circuit, No. 2008-1001, dated August 13, 2008.