Thursday, August 14, 2008

New Open Source Opinion has People Talking. Why?

There's a new opinion from the Federal Circuit that lots of people are talking about called Jacobsen v. Katzer, et al. (opinion here:, saying that it is a "victory for supporters of free software." See, e.g.,

I am not sure what all the fuss here is about, frankly. "Open source" has never meant "abandoned and contributed to the public domain" from a copyright law perspective. "Open source" was and is a licensing philosophy. Of course the underlying authors still own the copyrights and, assuming they registered them timely, can still sue and enforce those copyrights and get statutory damages, even if the code is "open source." As I read the opinion, all the court is really saying is that this particular license was such that the copyright owner could sue for copyright infringement as well as breach of contract because the license contained "conditions" and not just "covenants." This is more of a contract case than a copyright case, in my opinion.