On August 13, 2008, the U.S. Court of Appeals ruled that a violation of an open-source license constitutes copyright infringement, rather than a breach of contract.
Open-source software typically includes a license requiring the user to agree that the software could be used and modified by the user free of charge, so long as the user complied with certain restrictions, typically requiring, among other things, that the user describe any such modifications and make the modified version freely available.
In Jacobsen v. Katzer, the Court held that a violation of the license agreement would constitute a breach of the copyright ownership of the author of the source code. This may make enforcement of such violations easier.
Practice pointer: If one uses open-source software, be certain to review and comply with all of the provisions set out in the supporting documents, including the license agreement. This will help you both avoid any claim of violation of the open-source software and make accurate and correct representations and warranties as to your compliance should you be required to do so if your business is sold, or under other circumstances.
Neil Taxy, Esq. is the author of this post and may be contacted at ntaxy@lpslaw.com
Mr.Taxy counsels a variety of business clients in copyright and intellectual property matters.
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