Open Source Licenses Enforceable as Copyright Conditions

Creative Commons is an Open Source LicenseToday, the United States Court of Appeals for the Federal Circuit has overtured a lower court’s decision in Jacobsen v. Katzer, stating that “Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.”

From Professor Lawrence Lessig’s blog

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.

If Open Source license terms are covenants, then they would be enforced in contract law at the state level, rather than in copyright law at the federal level. These two forms of law are quite different, as is what you must prove to win a case, and as are the costs and benefits of even bringing a case.

The EFF notes:

Copyright damages will often be more expansive than contract damages. The standards for injunctive relief are different. The prevailing party in a copyright case can seek attorneys’ fees, while the general rule in contract cases is that both sides bear their own attorneys’ fees.

The appeals court remanded to the district court for reconsideration of the appropriateness of injunctive relief.

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