Robert W. Gomulkiewicz, Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License, 17 Tex. Intell. Prop. L.J. 335 (2009), https://digitalcommons.law.uw.edu/faculty-articles/679
open source, license, jacobsen, katzer, license condition, covenant, software contract, software license, Artistic license, GPL
The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, 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 v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by Jacobson v. Katzer and the unresolved issue that it leaves, concluding with a proposal that supports the business model innovation characterized by open source licensing.