Jacobsen v. Katzer: Failure of the Artistic License and Repercussions for Open Source

June 16, 2012

The case of Jacobsen v. Katzer is among the earliest to consider the enforceability of open source software licenses, and is therefore of key interest to the open source community. To the disappointment of that community, the United States District Court for the Northern District of California held that an open source project creator could pursue a breach of contract claim but not a copyright infringement claim against a defendant for violating the project’s license terms. However, Jacobsen should not be read to suggest a general judicial approach to all open source licenses, but rather as confirmation of the long-thought weakness of the Artistic License. Jacobsen suggests the relevant legal rules could be improved to create a stronger presumption of copyright enforceability for open source licenses as well as a clear ability to enforce nonstandard open source license terms under contract.