Close Enough

The Federal Circuit on Wednesday issued its decision in Jacobsen v. Katzer. The appellate court got to the right answer. The court ruled that a copyright holder who distributed his work under the Artistic License had the right to claim copyright infringement when a licensee failed to satisfy conditions on the license. The opinion is good for all software licensors.

In a ruling that many felt was cockeyed, the District Court in Jacobson treated the requirements placed on the licensee under the Artistic License as only return covenants by the licensee and not conditions on a license. The lower court saw the relationship between licensor and licensee under the Artistic License as one of contract and was unwilling to apply the strict injunctive remedies imposed by copyright law. In the District Court's view, under the Artistic License the licensor makes a broad promise to not sue for copying, modification or distribution of the licensed software and the licensee makes a return promise to take certain steps to keep the code open as it flows downstream. I think most people in the software licensing industry had a hard time with the lower court's way of seeing things. The relationship between open source licensor and licensee is generally not thought of as one of contract.

The Federal Circuit came to the more convential conclusion. It found that the Artistic License grants a copyright license that is subject to the condition that the licensee take certain steps to ensure openness. If this condition is not met, the licensor is entitled to claim copyright infringement and seek injunction under copyright law.

The Court of Appeals came to the right answer. Nonetheless, I do have a quibble with the precision of the opinion in places. 

I've read the Artistic License a few times now. It seems to me that its author made great effort to ensure that it does not evidence a contract at all. It is a license, and a license only. A one-way promise to not enforce copyrights against users of the software, subject to certain conditions and restrictions. There are simply no promises (i.e., covenants) made by the user-licensee of the code. I believe the Federal Circuit should have been more clear on this point. Rather, the court tees-up the central question in the case as follows.


"[I]f the . . . [violated terms of] the Artistic License . . . are covenants and conditions, they may serve to limit the scope of the license and are governed by copyright law. If they are merely covenants, by contrast, they are governed by contract law."


These are confusing sentences.  It is unclear why the Federal Circuit needed to mention covenants in these sentences.  No other part of the opinion reasons that the violated terms of the Artistic License are covenants at all. 

In my view, the Artistic License document evidences a bald license.  The steps the licensee must take to enjoy the license are not set forth as covenants (i.e., return promises), only as conditions.  Software licenses are sometimes baked into agreements, and, thus, terms are sometimes both covenants and conditions on license.*  But not the Artistic License, which is not an agreement.  The courts need to start parsing through these concepts more finely, unwinding the often misapprehended lines between agreements and licenses, contract law and property law. The interpretation of open source licenses gives them good opportunity to do this.**

Here's a link to the Federal Circuit Opinion.

_______________

*For example, most mass-marketed desktop software is distributed under an end-user license agreement (EULA) in which a license is conditioned upon the licensee's performance of return promises.  Licensors enjoy both copyright and contract remedies for breach of most EULAs.

** For  a characteristically multidimensional discussion of another bald license, the GPL, see Eben Moglen's essay Enforcing the GNU GPL.  According to Moglen (author of the GPL), the GPL is a license, not a contract.  Indeed, according to Moglen, no license is a contract. I agree.