SW Legal studies in Business

Copyrighted Open Source Software Due Full Copyright Law Protection

Appeals court held that copyrighted open source software is subject to the same protection as copyrighted software sold for a price. The holder of the software, in licensing its use, can determine the terms of use, such as modification and use in other formats.

Topic Cyberlaw
Key Words

Copyright, Infringement, Open Source

C A S E   S U M M A R Y

Jacobsen manages an open source software group called JMRI, which includes a program called DecoderPro that allows model railroad enthusiasts to use their computers to program the chips that run model trains. DecoderPro is available free as open source software. The software site contains copyright notices and sets forth license terms. Katzer offers a competing software, Decoder Commander. Jacobsen contended that Katzer downloaded and used part of DecoderPro in writing Decoder Commander in violation of the software license. Jacobsen moved for a preliminary injunction against Katzer’s program. The district court held that Katzer may have violated the license but there was no liability since it is open source software; so there is no harm. Jacobsen appealed.


Vacated and remanded. Jacobsen, as copyright holder, stated a prima facie case of infringement. Katzer violated the terms of the license. Attribution and modification transparency requirements in open source computer software license created conditions to protect economic rights in granting of public license, and thus were enforceable under the Copyright Act. Copyright holders who engage in open source software licensing have the right to control the modification and distribution of copyrighted material. The open source copyright owner has the same right of enforcement as does a copyright holder who sells copyrighted material.

Citation Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir., 2008)

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