Open Source Update: Cisco Sued & New Ruling in Jacobsen vs Katzer

In December, the Free Software Foundation (FSF) launched a lawsuit alleging that Cisco has breached the terms of the GNU GPL and LGPL (the General Public License and Lesser General Public License), thereby infringing copyright in the licensed programs. For more information, see the press release and a copy of the complaint filed by the FSF.

Last year in Jacobsen v. Katzer (US Court of Appeals for the Federal Circuit, August 13, 2008), an appeal-level court considered the ability of a copyright holder to distribute software under an open source license, and also obtain a remedy for any breaches of the license terms. In the decision, the court overturned the lower-court decision and decided that the open source license did not permit a licensee to modify and distribute the copyrighted materials without abiding by the copyright notice and modification-tracking conditions.  The case was sent back to the lower level for reconsideration, but it makes clear that:

  • the licensor enjoys “economic rights” under the open source license; these “economic rights” come in the form of various intangible economic benefits, even in the absence of traditional royalties or license fees, and
  • a licensee is not entitled to disregard the conditions attached to open source licenses.

In early January, a new ruling was issued by the lower court in Jacobsen v. Katzer.  Since the plaintiff failed to specify any damages, the contract claim was dismissed. The court also denied the injunction application (which would have barred Katzer from using the open-source code), on the basis that irreparable harm had not been established.  This shows that open-source licenses will always bump up against the practical realities of commercial litigation: to get a remedy, plaintiffs will still need to show damages and convince the court of the need for an injunction, just like in any lawsuit.

Canadian courts have yet to consider open-source software issues directly, but Canadian law will draw upon this growing body of American caselaw when the time comes.

Calgary – 10:00 MST

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