Q: What is an open source license, and why is it important?
Q: Why would anyone just give away their creative work under an open source license?
Why indeed. The success of the open source licensing model is one of the most fascinating phenomena of the digital age. Sophisticated products with major market impact are available for free under open source licenses: the Firefox Internet browser; the Wikipedia online encyclopedia; and Apache server software. Although traditional forms of intellectual property protection are based on the assumption that the profit motive (self interest) is the greatest driver of innovation, open source licensing is based on the assumption that unrestricted sharing of knowledge and innovation (collaboration) best begets further knowledge and innovation. There is also a hybrid business model, based on the “give away the razor for free to make money selling the razor blades” concept. In some cases, for-profit businesses contribute to open source software so they can sell associated databases, or maintenance, or hardware—several distributors of the open source Linux operating system sell warranties and maintenance to go with their version of Linux, while several sellers of smartphones “give away” the open source Android software that runs them. (Smartphones running Android outsold Apple’s popular iPhone during the first quarter of 2010.)
Q: What happens if the user ignores the requirements of an open source license, for example by charging a license fee for its altered version of the open source material?
Until recently, it was not clear if there was any penalty to ignoring the requirements of an open source license. Opponents of open source licensing had previously argued that if licensors gave their product away for free, then even if licensees ignored the terms of the license, there were no damages. But in Jacobsen v. Katzer, the Court Of Appeals for the Federal Circuit put legal teeth in the open source licensing model, by ruling that violation of an open source license was not just a breach of the license, but might also be a copyright infringement. The case involved software developed by physics professor and model train enthusiast Robert Jacobsen to program decoder chips that control model trains. Jacobsen made the software available under the open source Artistic License. Matthew Katzer and Kamind Associates copied several of Jacobsen’s files into their own commercial software, but in violation of the license terms, did not include a notice of attribution to Jacobsen. While Katzer and Kamind conceded that Jacobsen’s software was copyrighted, they argued that since the Artistic License permitted them to copy the files, there was no copyright infringement, at worst only a breach of the license terms. The CAFC disagreed, ruling that since the attribution requirement was drafted as a condition under which the license was granted, copying in violation of a condition was not excused by the license, and was therefore a copyright infringement. The case is significant not only because it is the first major case validating the concept of open source licensing, but also gives open source licensors a much more effective means to enforce the license. Although contract damages are normally calculated on economic harm suffered by the injured party (and therefore difficult to prove when a product is given away for free), under copyright law, creators can collect damages and attorneys fees based on the infringer’s profit, or under a fixed formula called statutory damages. Furthermore, copyright law allows the licensor to pursue licensees of the licensee, while contract law normally does not. Thus, the Jacobsen case gives real teeth to open source licensing—however, at this time it is limited to cases under the jurisdiction of the Federal Circuit. Although the Jacobsen case makes it much easier for open source licensors to get damages to enforce license terms, an important open question is how easily they can get injunctions to enforce open source license terms, for example an injunction ordering a licensee to disclose its source code to the public, or even shutting down all further distribution of the licensee’s software.