The law being, well, the law, a key part of the case rests on a distinction that most of us wouldn't appreciate: the difference between the principles of contract law and copyright law. "The Jacobsen decision finally settled that open source licensors can enforce their licenses effectively in U.S. courts. Defendants can't avoid copyright law by relying on contract law principles that are inapplicable in the open source and open content world," says Rosen.
Stanford's Lawrence Lessig, probably the most influential attorney who has supported open source, explained it further: "In non-technical terms, the Court has held that free licenses such as the Creative Commons licenses set conditions on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license."
Suing for a copyright violation not only opens the door to significant damage awards based on lost profits, it also allows for the recovery of legal fees, a big plus for developers who rarely have their own lawyers or the deep pockets needed to pay for a complex legal action.
A double-edged sword?
To be fair, Jonathan Moskin appears to be in the minority in expressing fears that Jacobsen may signal a new era of open source infringement cases. Most of the commentary on the Jacobsen case has positioned it as a major victory for developers. Moskin doesn't dispute that, but in a article last week on law.com and an interview with me, he raised a number of concerns that are worth considering.
(Moskin's firm has represented Microsoft in anti-trust litigation before the European Union. Does it make him biased against open source? Based on our conversation, I don't think so.)
He argues that because Jacobsen "confirmed that a licensee can be liable for copyright infringement for violating the conditions of an open source license, the original copyright owner may now have standing to sue all downstream licensees for copyright infringement."
He continues, saying: "Thus, the effect of Jacobsen is twofold; it enables a set of potentially onerous monetary remedies for failures to comply with even modest license terms, and it subjects a potentially larger community of intellectual property users to liability."