A long running American litigation over the unlikely subject of model trains is being hailed as a major milestone by advocates of Open Source software worldwide.
In Jacobsen v Katzer, Jacobsen accused Katzer of copying certain materials from Jacobsen’s website and incorporating them into one of Katzer‘s model railway software packages without following the terms of the Open Source “Artistic Licence”, by not naming the author, not acknowledging the origin of the software, and failing to track changes Katzer had made to the software. Katzer sold his modified railway software on a commercial basis. Jacobsen’s was offered on a free to use basis. Jacobsen brought an action for copyright infringement and moved for preliminary injunction.
The case’s significance is that it is the first high-level judicial discussion of the remedies available for breach of Open Source licences. Until the decision, it was unclear whether an open source licence was capable of imposing enforceable copyright restrictions on the use of computer code, or whether the only remedy was a hard-to-quantify claim for damages.
The Appeals Court, reversing an earlier decision of the District Court to the relief of the Open Source community, held that Open Source licences do set conditions on the use of copyrighted work. When the condition is violated the licence disappears, meaning the user becomes an unlicenced copyright infringer. This is what the Open Source Community had always understood to be the theory of the GNU General Public Licence and all Creative Commons licences.
So, if you are incorporating Open Source code into one of your applications, pay careful attention to the licence. Even though the software is “Free to Use” you can still be liable to the software’s author if you fail to follow the licence.
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Paul Motion