Federal Circuit: Copyright Infringement Applies to Public Licenses

UPDATE: A BLT reader correctly pointed out that this post should have referenced The Artistic License, not artistic licenses. The Artistic License is one version of an "open source," or public license.

Free software is available everywhere on the Web, and downloading it is a cinch. But breaking the terms of an open-source, public license can amount to copyright infringement, the U.S. Court of Appeals for the Federal Circuit in the District of Columbia ruled this week.

The appeals court in a California case reversed a federal district court ruling that said a person who breaks the terms of an open-source can be held liable for breach of contract, not copyright infringement. The remedy for infringement — including injunctions, statutory damages and attorney fees — can be more substantial than a breach of contract award.

Bob Jacobsen, a physics professor at the University of Berkeley, manages a software group called Java Model Railroad Interface, which controls a programming application called DecoderPro. Model railroad enthusiasts use DecoderPro to program chips in model trains. Jacobsen accused Oregon resident Matthew Katzer and Kamind Associates of copying materials from the publicly available software and incorporating it without following the terms of the public license. Jacobsen filed a copyright infringement complaint and sought an injunction against Katzer and Kamind Associates of Hillsboro, Oregon.

The U.S. District Court for the Northern District of California, in San Francisco, ruled Jacobsen’s Artistic License was “intentionally broad” and had unlimited scope. The Federal Circuit remanded to the district court, where Jacobsen’s complaint was filed in 2006. A status conference will be held in the coming weeks.

“This decision confirms what everyone in the community knew, that the terms must be followed or it is copyright infringement,” Jacobsen’s attorney, Victoria Hall of Bethesda, told Legal Times. A message left with Katzer’s attorney, R. Scott Jerger of Field Jerger, in Portland, Oregon, was not immediately returned. Katzer could ask for a rehearing en banc or petition the Supreme Court for certiorari.

Much of the open-source litigation, Hall said, has been disposed through arrangements between the parties and through settlements. Bloggers advocating open-source software heralded the Federal Circuit’s ruling. Appeals of copyright law are rare in the Federal Circuit; this case originally arose in part under patent law.

“Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material," the Federal Circuit said. Chief Judge Paul Michel, Judge Sharon Prost and U.S. District Judge Faith Hochberg of the Northern District of New Jersey issued the order.

The judges said: “Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago."

Comments

[S. Reed]

There seems to be a misunderstanding by the author of this article. There is a very particular open source license that is named the "Artistic License." The open source programming language Perl uses it, and the license can be used by other open source projects. So, instead of referring to "an artistic license," the more accurate statement would be "The Artistic License." The text for the Artistic License can be found at http://www.perl.com/language/misc/Artistic.html