In a recent article about the Jacobsen v. Katzer case Bruce Parens, the creator of the Open Source Definition (OSD), warns that "taking adversary action against an Open Source project is like boxing with a beehive."

I think he's right. In my own experience with the Sakai project I've seen boxers like Blackboard stung repeatedly as the education market, led by the education open source community, swarmed against them for their predatory behavior using bogus patents. Recently we're seeing signs of a similar swarm related to the Thomson-Zotero suit.

Yet the stinging power of the open source community (at least legally) has been uncertain--until recently. In August the Court of Appeals for the Federal Circuit issued it's ruling in the Jacobsen v. Katzer case. This was the first substantial legal test of the open source license in a reasonably high US court. The ruling sounds to me like the most important legal victory for open source--ever.

The Jacobsen v. Katzer case is between a model train hobbyist and open source software developer named Bob Jacobsen and Matthew Katzer, the owner of a proprietary model train software company. The district court hearing the case issued a potentially disastrous ruling that the open source license terms were contractual covenents. Based on that ruling Jacobsen may be entitled to monetary damages for breach of contract, if in fact there was a legitimate contract. He would not, however, be entitled to more substantial copyright infringement remedies like injunctive relief (court enforced compliance with the license terms).

As I understand it, the substance of this ruling has to do with whether a judge interprets the terms of an open source license as a contract that requires both parties to agree, or a license that does not have such a requirement. This determination between contract and license determines the extent to which the license can be enforced, and the kind of remedies available when the terms are violated.

In August, the Court of Appeals for the Federal Circuit reversed the lower court's earlier decision. We're very fortunate that legal experts and others seized this opportunity and donated their time and money to help defend Jacobsen and set a precedent for all open source communities. Without such help it may have been cost prohibitive. According to Mark Radcliffe the decision sets forth the basic rule very clearly:

“Copyright licenses are designed to support the right to exclude: monetary damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes rather than as a dollar-denominated fee, is entitled to no less legal recognition.”

One effect of this ruling is that our communities can be confident in the terms of our licenses and in our ability to defend them. Because the ruling interpreted the open source license terms as conditions on the scope of the copyright license, copyright law remedies such as injunctive releif, attorneys fees, actual damages, and statutory damages may be applicable.

Boxing with a beehive doesn't seem like a good idea in the first place but the new ruling makes it even more reckless and dangerous for the would-be boxer. The open source bees have been africanized!