Edited by Jacques de Werra
Chapter 4: Clarifications and complications in enforcing open source software licenses
In the past, if a software “hacker”1 happened to meet an American lawyer, the first question the hacker would ask the lawyer is this: “Are open source software licenses enforceable in the United States?” Lawyers usually gave three answers to that question. First, since courts in the United States enforced other types of mass market software licenses, surely courts would enforce open source licenses as well. Second, some courts outside the United States enforced them. And finally, a lawyer might say that because people are abiding by the terms of open source licenses as if they were enforceable, for all intents and purposes the licenses are self-enforcing. These complicated answers seldom satisfied software hackers who retorted: “Give me a clear answer!” Now lawyers can, thanks to the Court of Appeals for the Federal Circuit’s ruling in Jacobsen v. Katzer.2 Or at least lawyers could until three recent cases from the Court of Appeals for the Ninth Circuit.3 I call this trio of cases the “MDY Trio”4 because they update the Ninth Circuit’s prior trio of licensing cases known as the “MAI Trio” (so named for the MAI Systems v. Peak Computer case5). On the surface, the MDY Trio appears to provide a boost for the enforceability of software licenses. However, the MDY Trio creates two complications for open source licensing. First, the MDY Trio’s test that distinguishes between licenses and copyright “first sales” does not seem to be a good fit for open source licensing.
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