On February 18, 2010, the parties in Jacobsen v. Katzer settled their dispute over open source software (OSS) on terms favorable to the OSS developer, Jacobsen.1 This development merits careful consideration by companies and individuals that use OSS for several reasons, including:

• Cases in both the U.S. and abroad have held that OSS licenses are enforceable copyright licenses. In the U.S., the Jacobsen case specifically held that violators of OSS licenses may be subject to claims under copyright law, including statutory damages up to $150,000 per infringing work and injunctive relief.

• The favorable terms of the Jacobsen settlement provide additional evidence that violators of OSS licenses may face significant repercussions.

Background

The OSS underlying the dispute is used to build software tools to control model railroads. The plaintiff and copyright holder, Jacobsen, created the Java Model Railroad Interface (JMRI). JMRI is governed by the Artistic License, which, like many other OSS licenses, imposes certain requirements on downstream users. The defendants, Katzer and related parties, incorporated code written by Jacobsen into a competing commercial product without complying with the requirements of the Artistic License. Consequently, Jacobsen sued Katzer for copyright infringement based upon the unlicensed use of the JMRI code and sought a preliminary injunction.2