The Legality of Free and Open Source Software Licences: The Case of Jacobsen v. Katzer

Abstract

In August 2008 one of, if not the most, influential Intellectual Property courts in the USA known as the Court of Appeals for Federal Circuit upheld the validity of a free and open source software licence known as the Artistic Licence. The case is significant because up until this point there has been little judicial discussion of the legal operation of this new type of copyright licensing that is sweeping across the world fuelled by the ubiquity of the Internet. The decision in Robert Jacobsen v. Matthew Katzer and Kamind Associates, Inc. 2008 U.S. App. LEXIS 17161 (Fed. Cir. 2008) issued on 13 August 2008 provides a unique and welcomed insight into the legal operation of free and open source software licences and by analogy Creative Commons styled open content licences. This article analyses the judgment and provides commentary on its reasoning