In the Aug. 13 opinion in Jacobsen v. Katzer, 2008-1001, 2008 WL 3395772, the Federal Circuit U.S. Court of Appeals ruled that violation of an open source license constitutes copyright infringement rather than a breach of contract. In so holding, the Federal Circuit rejected the notion that the free and unlimited nature of open source software licenses mandates that provisions of these licenses be construed as covenants, the violation of which would constitute breach of contract, rather than conditions that give rise to a claim of infringement. Specifically, the court held:
“Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. … The choice to extract consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.”
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