Open source license bars claim for copyright infringement

Evan Brown's Internet Cases blog reports on another case where a free/open source software (FOSS) licence has been enforced by the Courts. Here, it's the Californian Court and the case is Jacobsen v Katzer.

This case is unusual for a couple of reasons. Firstly, with all the free/open source software Court cases that I've read about so far, it has been the creator of the software relying on the FOSS licence. In this case, the distributor of the software relied on the licence. Secondly, and bizarrely, part of the software creator's case was that the distributor should not have been:

• Copying the software
• Distributing the software
• Making derivative works based upon the software

Now hang on a second... aren't these the sort of actions that FOSS licences are designed to allow, sometimes subject to one or two restrictions? In that case, why does the software creator have a problem with the distributors actions? The Court appears to have followed this logic and found that the distributor had stayed within the terms of the licence.

One of the issues with FOSS licences is whether they are bare licences or contracts. The two are distinct from a legal perspective. One implication is that you cannot sue for breach of contract if there is no contract in existence!

Here, the Court found that there was no contract in place, simply a licence, and therefore the software creator had no claim in contract.