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

Articles

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 …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …