Jacobsen v. Katzer involves a dispute over rights in software code distributed pursuant to the open source Artistic License. Last year the case yielded one of the very few judicial rulings dealing with open source software. As we wrote at the time, the U.S. Court of Appeals for the Federal Circuit rejected the argument that open source licenses are enforceable only in a breach of contract action. In a broadly worded opinion that endorsed the open source approach to licensing, the court held that open source license restrictions are enforceable under U.S. copyright law, thereby making the federal courts, and the potent remedies under the Copyright Act, available to open source licensors.  
The case was remanded to the district court for further proceedings, and has now yielded another ruling favorable to the plaintiffs on a number of critical points, including eligibility of software code that is distributed for free for copyright infringement damages.  Jacobsen v. Katzer, No. C 06-01905 (N.D. Cal. Dec. 10, 2009) .

On May 20, the Free Software Foundation announced the settlement of its copyright litigation with Cisco Systems over the inclusion of open source software in certain Linksys products. The settlement includes undertakings by Cisco with respect to compliance with the requirements of "free software licenses." Here’s some of what the FSF had to say about the settlement (the full text of the FSF press release is available here):

Cisco has agreed to appoint a Free Software Director for Linksys, a subsidiary of Cisco, to supervise Linksys’ compliance with the requirements of free software licenses such as the GPL (the GNU General Public License). The Free Software Director will report periodically to the FSF regarding Linksys’ compliance efforts. Cisco has further agreed to take certain steps to notify previous recipients of Linksys products containing FSF programs of their rights under the GPL and other applicable licenses, to publish a licensing notice on the Linksys website, and to provide additional notices in a separate publication. In addition, Cisco will continue to make the complete and corresponding source code for versions of FSF programs used with current Linksys products freely available on its website. Cisco will also make a monetary contribution to the FSF.

The parties recognize Cisco’s ongoing obligations under the GPL and other free software licenses. The FSF will continue to independently monitor Linksys’ compliance with these licenses, and work with Linksys to resolve any new issues that may arise.

The Free Software Foundation has filed a copyright infringement complaint against Cisco Systems. The complaint alleges that Cisco’s Linksys products contain certain works in which the FSF holds the copyright, but Cisco has not complied with the requirements of the licenses pursuant to which the FSF makes the works available.

This is the first copyright infringement action ever filed by the FSF, according to the press release announcing the filing of the action. The filing of the lawsuit follows on the ruling by the United States Court of Appeals for the Federal Circuit last August in Jacobsen v. Katzer that open source licenses are enforceable under copyright law.

CNET’s Ina Fried late yesterday posted an interview with Horacio Gutierrez, deputy general counsel and vice president of intellectual property and licensing at Microsoft, in which he declares that the “war between proprietary and open source is a thing of the past.” That statement is going to get a lot of press, and a lot of comment, as will other statements in the interview.

Gutierrez is touting Microsoft’s open source distributions as well as its licensing deals with open source companies, most significantly Novell. This is a theme that Gutierrez has been sounding for a while but not in such a headline-grabbing way, here’s a link to the Sept 16 PR interview of him on the Microsoft site. Microsoft has been taking a softer line with respect to open source software, under pressure from antitrust authorities as well as the realities of the marketplace.

The statement about everyone being mixed source, that we can relate to, except that it isn’t in the future, it’s been true for quite a while. Arguably, the “war” between proprietary and open source software was over long before Bill Gates’s infamous remark in January 2005 that was interpreted as comparing open source advocates to communists.

There are so few judicial opinions dealing with open source licenses that any single one is of great interest, but the pro-open source ruling of the Court of Appeals for the Federal Circuit in Jacobsen v. Katzer, No. 2008-1001 (Fed. Cir. Aug. 13, 2008) easily goes to the top of the charts of this small category. This is a highly significant opinion that will greatly bolster the efforts of the open source community to control the use of open source software according to the terms set out in open source licenses.