A recent decision by the Court of Appeals for the Federal Circuit has reassured members of the open source software movement by declaring that software distributed for free is still protectable by copyright.
Open source software development thrives on continuous additions and improvements made by many different people, but attribution of preexisting code to the previous authors remains important. Use of open source code for profit requires such attribution or at least description of any alterations made to the code. The sharing of such information is the basis for the movement and helps perpetuate open source development.
Recently, a U.S. District Court in San Francisco had ruled that a plaintiff whose code had been taken and used for profit without attribution could only sue for breach of contract, not for copyright infringement. The ability to sue for copyright infringement is important because it is typically easier to recover monetary damages in infringement suits (in certain instances) than those based on breach of contract. Robert Jacobsen manages a software development company which created an application to help program computer chips used in model trains. The group later discovered that KAM Industries was using their code in their competing product without attribution.
The decision was appealed to the Federal Circuit, which vacated the judgment of the lower court and returned the case for further proceedings. The Federal Circuit held that “[t]raditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however.”
While the final decision from the district court is forthcoming, it will be consistent with the decision of the superior court, the Federal Circuit, so open source developers can rest easier knowing that the material they created remains copyrightable, and that they can use all the traditionally-available tools to defend their copyrights.