Open-Source Licenses Affirmed

The Federal Circuit issued its opinion in Jacobsen v. Katzen yesterday. The Court came out the way that it should have, finding that the conditions imposed by Open Source licenses are, in fact, "conditions" in the contract-law sense of the word. The relevance to the case is that if the terms were deemed "covenants," then there is no action in equity for enforcement - only damages. Since Open Source software is by its nature free, there are no damages recoverable, and Open Source licenses would be neutered.

There were several interesting things about this case. First, that the Federal Circuit had jurisdiction at all. While there was initially a declaratory judgment action in patent non-infringement by the plaintiff, it was not appealed. Therefore the main question on the table was interpretation of a contract under California law, with the ancillary question of copyright infringement. Both of these appellate areas are the bailiwick of the regional circuit courts, and the Federal Circuit applied Ninth Circuit law in this case. The Court's ruling on this point (per page 5 of the slip op) looks exactly right based on the relevant Congressional statutes, but it's a strange result.

Second, part II.A reads almost exactly like Ms. Hall's oral argument on the economic reasons for Open Source. While I think her arguments could have been phrased better for solid grounding in traditional economic terms, it's interesting that the Court was so receptive to these arguments.

All in all, an excellent result for fostering new economic models of software development and progression of the art.