Open-source software licensing has become mainstream in the field of software development. Nowhere is this more evident than in the 2008 Federal Circuit decision Jacobsen v. Katzer, where the court first interpreted the terms of an open-source software license. The Jacobsen decision offers an important first step in how to interpret the terms of an open-source license, though it does not address how to interpret licenses other than the Artistic License. This Article explores how Jacobsen’s reasoning can be used to interpret the terms of other open-source licenses, particularly the GPL v.2, GPL v.3, Apache License v.2, BSD License, and the Mozilla Public License. After examining the Federal Circuit’s discussion of “conditions” and “covenants,” this Article suggests how to draw a principled distinction between these terms when interpreting an open-source license. This Article also examines policy considerations that arise when interpreting the terms of an open-source license and offers proposals for reducing exposure to potential copyright infringement liability when using software licensed under an open-source software license.
Jacobsen Revisited: Conditions, Covenants and the Future of Open-Source Software Licenses,
6 Wash. J. L. Tech. & Arts
Available at: https://digitalcommons.law.uw.edu/wjlta/vol6/iss4/6