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Circuit Court Offers New Understanding Of Open Source

I have watched various court cases that involve bitter disputes within the computer industry and wondered how the courts could keep up. Each time it seemed to me that the basic issues had moved beyond the understanding of the court. The cases seemed to come down to who produced the more authoritative expert opinion. Then the U.S. Circuit Court of Appeals comes along and demonstrates a comprehension of open source code.

The Jacobsen Vs. Katzer case was trivial on its face -- when was the last time the lawyers went to the mat over model railroad software? Two members of the same national model railroading association were fighting over who had rights to a wireless train control program.

The court demonstrated it understood that just because open source code is free doesn't mean it has no commercial value. On the contrary, if software is available for free download and is adopted by a large number of users, that translates several ways into value for the company behind it. JBoss, XenSource, MySQL AB, Zimbra, and Sleepycat have all established their market value by their acquisition prices -- with the first four ranging in price from $350 million to $1 billion, or extremely high values.

Not since IBM started adding the Apache Web Server to its products
have we seen as clear a recognition of the value of open source code and its likely staying power in society than in Wednesday's ruling.

"This was a remarkable decision. It demonstrates that the U.S. courts understand open source and the Creative Commons," said Larry Rosen, former general counsel to the Open Source Initiative, which approves open source licenses.

"We now have a good answer to anyone who asks, 'But has it ever been tested in court?' Yes, it has, and the conditions of the licenses are enforceable," added Rosen, a partner in Rosenlaw & Einschlag, a technology law firm in Los Altos Hills, Calif.

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