Blawgletter once again learned something new today. The Federal Circuit -- as it often does -- furnished the instruction.
You've probably Googled your way to Wikipedia articles, right? And in the process you've likely also viewed images and listened to music that someone has granted an "open license" that permits people to use within limits. The Wikipedia item on a non-profit that encourages such licenses, Creative Commons, says:
The Creative Commons licenses enable copyright holders to grant some or all of their rights to the public while retaining others through a variety of licensing and contract schemes including dedication to the public domain or open content licensing terms. The intention is to avoid the problems current copyright laws create for the sharing of information.
The same thing happens with software.
In Jacobsen v. Katzer, No. 08-1001 (Fed. Cir. Aug. 13, 2008), the court considered whether violation of an open source license may entitle the copyright owner to sue for a preliminary injunction. The copyright owner/open source licensor, Robert Jacobsen, authored software that allows users to program "decoder chips" in model train sets. (The opinion doesn't say, but we assume that the programming can make your locomotive do fancy stuff that it won't do out of the box. The JMRI webpage for the program, DecoderPro, doesn't shed a lot more light.) Jacobsen alleged that Matthew Katzer and Kamind Associates, developers of commercial software, violated "conditions" on the license, which required licensees to put in their software (among other things) JMRI copyright notices, references to a file that set forth the terms of the license, and a description of how the user had changed the DecoderPro software. The district court deemed the restrictions mere "covenants", which entitled Jacobsen to damages for breach but not to more splendiferous relief under the Copyright Act for infringement.
The Federal Circuit reversed. It noted that open source licenses don't earn royalties but that they nonetheless may confer important economic benefits on the copyright owner. These benefits include improvement of the work through others' (gratis) contributions and enhancement of the licensor's professional reputation. The court also pointed out that, while a "covenant" implicates contract law, a "condition" on a license of a copyrightable work summons the protections of the Copyright Act.
Arriving at the heart of the matter, the court emphasized that the license itself described its "intent" as "to state the conditions under which a Package may be copied" and that it used the universal code words for creating a condition -- the old chestnut of transaction lawyers, "provided that". The court thus vacated the order denying a preliminary injunction and remanded the case for consideration of the remaining requirements for preliminary equitable relief.
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