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Enforcement Of Open Source Software Licenses: The Mdy Trio's Inconvenient Compliations, Robert W. Gomulkiewicz

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The Federal Circuit’s ruling in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)] finally settled the question of whether open source licenses are enforceable. Unfortunately, three recent cases from the Ninth Circuit have complicated matters. I call this trio of cases the “MDY Trio” in honor of the Ninth Circuit’s prior trio of licensing cases known as the “MAI Trio.”

On the surface, the MDY Trio provides a boost for the enforceability of software licenses, but the MDY Trio also creates two significant complications for open source licenses. First, the MDY Trio’s test for distinguishing between licenses and copyright …