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Federal Circuit: Breach of open source license conditions can lead to copyright infringement

By McKee, Voorhees & Sease, P.L.C.

In a recent decision, the Federal Circuit addressed some of the copyright issues involved with the open source movement.  Often open source software is distributed under a so-called copyleft license, which permits others to use the work, subject to certain restrictions.  The GNU general public license is the most well-known of these licenses.  The license at issue in this case was the Artistic License.  The district court held that because the copyright holder elected to give the work away under this license, any remedy for a violation of the license terms was effectively a breach of contract claim, not a copyright infringement claim.  

The Federal Circuit vacated the district court's decision based on the finding that there was sufficient consideration to form a contract under the Artistic License and that the grant of rights under the license was contingent on compliance with the various restrictions in the agreement.  Essentially, the potential viability of the plaintiff's copyright infringement cause of action hinged on whether the restrictions in the Artistic License were considered conditions of the license or covenants.  The court held they were conditions, and as a result, violation of the conditions took the defendant's use of the work outside the scope of the license, rendering it an infringing work.

While this is a copyright case, it also provides insight as to how the Federal Circuit may treat patent exhaustion arguments post-Quanta, as the sales in Quanta that resulted in patent exhaustion were conceded to be within the scope of the license.

More on Jacobsen v. Katzer after the jump.

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Full post as published by FileWrapper on August 16, 2008 (boomark / email).