The open source model train case has settled, obviating a second filed appeal to the US Court of Appeals. The press has been describing the settlement as a big win for open source, which is not strictly accurate, but the result overall is a win for open source licensing. The settlement involved a monetary payment, but there have now been other lawsuits that resulted in monetary settlements for violation of open source licenses. And that means nothing in a true legal sense — though it underscores that corporate users of open source are fearful enough of enforcement actions that they will write a check to avoid them.
It is significant that this case involved a license other than GPL — the original Artistic License — which is generally considered permissive. If a permissive license is enforceable, that lays substantial groundwork for enforceability of copyleft licenses. Here, the actual harm to the copyright owner was at issue. For Jacobsen to prevail, the court had to decide that there was sufficient harm to give rise to a remedy. With a permissive license, the harm is, essentially, failure to deliver notices. For a copyleft license, the conditions are much more significant, and thus violating them would give rise to greater harm.
The settlement was interesting in two ways. It included an injunction by the district court against further infringing activities, and it was not sealed. Most settlements are confidential, and an actual injunction by the court in a settlement is a bit unusual. But the injunction would have carried more precedential weight if it had been won in court rather than agreed to in settlement. (The District Court had previously declined to issue an injunction.)
The big win here was not the settlement itself, but the the opinion of the Federal Circuit in the first appeal, which was handed down last year — and secondarily, the order for summary judgment in December, to the extent it supported an award of damages for copyright infringement notwithstanding the royalty-free distribution of the software by the owner.
In fact, the conventional wisdom among those of us law geeks who live and breath open source legal issues is that Jacobsen v. Katzer was very nearly a case that made bad law. It was plucked from the stormy sea of District Court by the Federal Circuit — an unlikely hero in the open source world. But in a common law system, we don’t get to pick the cases that make law. And a settlement means no more law gets made at all. In other words, game over, but at least we beat one of the boss levels.
