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8/14/2008
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Open Source Code On Firmer Ground After Jacobsen Ruling

Before the decision, it wasn't clear whether a court of law would regard an open source license as being capable of imposing enforceable copyright restrictions on the use of computer code.

In a blog post Wednesday, Lessig said the GPL commonly used with open source code projects, his Creative Commons license, and the Artistic License that covered Jacobsen's code were now all on much firmer ground.

"In non-technical terms, the Court has held that free licenses, such as the Creative Commons licenses, set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer."

That opens up the possibility of the District Court issuing an injunction against any more bills being sent by Katzer's company, Kamind Associates. Kamind had been attempting to charge Jacobsen $29 per open source download. In the case of model railroad software, the financial stakes were relatively small.

When you consider the possibility of a commercial company billing the Samba project for the value of Samba downloads, or Linux Torvalds for the value of Linux downloads, the bills would have to run into the hundreds of millions of dollars and the implications are obvious.

Mark Radcliffe, a software license expert at DLA Piper law offices in the Silicon Valley, termed the Appeals Court decision "a major victory for open source." The lower court decision had been "wrong and wrong in a way that could have been a disaster for the open source community," he wrote Wednesday on his Law and Life: Silicon Valley blog.

Hall, Jacobsen's attorney, said her client will now seek "injunctive relief and damages. ... Justice requires that Mr. Katzer and his company be held responsible for their violations to ensure that they do not commit these violations again."

Hall said she expected the district court to follow up the Circuit Court of Appeals decision in the next two months. Hall took the case pro bono, and was aided by several other lawyers contributing their time, including two working for Lessig's Stanford Center for Internet and Society, Chris Ridder and Anthony Falzone.

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