17 January 2009

Open source software licenses are not contracts

The Federal Circuit U.S. Court of Appeals for the Federal District has recently resolved an uncertainty within US copyright law, namely whether open source licenses’ terms constitute a (copyright) “license” or  a mere  “contract”.

This may appear quite funny to a (European) civil lawyer as in his or her understanding the license is just one type of contract. However, this is not the case in the US.

Accordingly, the major difference between “licenses” and “contracts” lies in the realm of procedural law.
In a copyright infringement procedeeings the possibility to seek and obtain injunctive relief is available only if a license is affected, whereas this door is closed in the event of contract enforcement.

Although the authority in Jacobsen does not deal with GNU GPL, being the most important open source license, it is still very important as open source issues have so far not been settled before court.

One may remain curious as whether further authorities will follow.

Comments (1)

  1. 30 January 2009
    adolushanov said...

    Here is a very interesting article about this case by Bruce Perens, the creator of the Open Source Definition. It seems that if the Court of Appeals took the side of Katzer this could put to threat even huge open source projects like Linux, Apache and Wikipedia. This judge saved the world from a new Stone age of internet. 🙂http://itmanagement.earthweb.com/osrc/article.php/12068_3775446_1/Bruce-Perens-A-Big-Change-for-Open-Source.htm

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