The Little License That Could—Dangers Of Using Open-Source Code After
Jacobsen v. Katzer

March 31, 2009
The Intellectual Property Strategist
Howard Wettan

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Commercial software developers should be even more cautious of incorporating any open-source code in their offerings, following the recent decision of the Federal Circuit in Jacobsen v. Katzer. The Federal Circuit held that breach of an open-source license does not merely permit a breach of contract claim, but that violating the "conditions" to the intellectual property license creates a cause of action for copyright infringement, with possible costly monetary remedies. An additional consequence of the decision is that, by pursuing copyright claims, an open source licensor may now be able to sue downstream licensees for copyright infringement, even if there was no direct contractual relationship between the owner and the ultimate user.