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Open Source Copyrights Legally Enforceable, Appeals Court Rules

The federal appeals court said open source users that do not comply with the software's strict licensing terms can be sued for copyright infringement -- even if the software is free.

A federal appeals court has struck down a lower court ruling that found that open source copyrights may not be legally enforceable if they're licensed under terms that are "intentionally broad."

Ruling on an appeal brought by software developer Robert Jacobsen, the U.S. Court of Appeals for the Federal Circuit said Wednesday that open source users that do not comply with the software's strict licensing terms can, in fact, be sued for copyright infringement -- even if the software is free.

The court also ruled that publishers of free software can sue copyright violators for monetary damages.

Jacobsen sued Mathew Katzer and Kamind Associates in 2006 in U.S. District Court for Northern California, accusing them of violating the licensing terms for a utility he wrote called Decoder Pro that allows model train enthusiasts to program chips that enable trains to be controlled remotely.

Jacobsen made the software available under the open source Artistic License. The license requires users who modify software governed by its terms to document the changes in subsequent distributions and to attribute the original software to its creator.

In his original lawsuit, Jacobsen claimed that Katzer and Kamind Associates did neither when Kamind added Decoder Pro to its own Decoder Commander Software, which is also used to create remote control chips for model trains.

The lower court ultimately ruled that Jacobsen could not sue Katzer and Kamind Associates for copyright violation because the Artistic License is "intentionally broad."

The appeals court dismissed that argument in its ruling, and said that open source software developers have the right to dictate the terms under which their products can be used or modified.

"The clear language of the Artistic License creates conditions to protect the economic rights at issue in the granting of a public license. These conditions govern the rights to modify and distribute the computer programs and files included in the downloadable software package," the court said.

The appeals court also ruled that Jacobsen could sue for monetary damages, even though his product is free. "The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration," the court said.

"There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects," the court ruled.

The appeals court remanded the case back to the California District Court for further consideration.

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