Open Source Copyright Issue Closed By Court

With the proliferation of open source web collaboration tools such as SourceForge, Wikipedia, and blogs, important concerns have been raised regarding a tool users’ ability to restrict the content they create.  At the heart of the debate is whether a work, released for free public use, can still have restrictions attached via an open source copyright license. In a recent US Federal Court decision, significant progress has been made in clarifying the extent to which open source software and open source works are protected under US copyright law.[1] The court’s reasoning, while focusing on whether the terms of the license were conditions or covenants, also touched on the important issue of moral rights infringement.

Releasing works for free public use under an open source license means that the economic rights of the author to produce, re-produce, or publish a work are assigned to the public. The rights which remain with the author and which are found in open source licenses (i.e. attribution, modification restrictions, and non-commercial use restrictions) appear to be prima facie non-economic rights.

Under Canadian copyright law an author may restrict their open source works via copyright since many common open source license restrictions fall under the moral rights section of the Canadian Copyright Act s. 14.1(1). For example, GNU’s General Public License [2], and the variations of the Creative Commons licenses [3] can require that the original author be recognized in the work. This license restriction fits well under the author’s moral right to attribution [4]. The majority of the open source licenses also require that the work remain free for public use and cannot be used for commercial purposes. Similarly, this restriction coincides with the moral right of association – in this case not be associated with a commercial product.[5]

Within the US, however, authors have greater difficulty restricting their public works via copyright since US copyright laws only recognize authors’ economic rights.[6] In traditional non-public works, American courts have nevertheless found ways to grant the equivalent of Canadian moral rights to authors without turning to the copyright act. This is accomplished by finding remedies in contract law (misrepresentation) for mutilation of an author’s works, or tort law (unfair competition) for non-attribution.[7] The underlying policy rational is that the:

economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent[8]
Even though US courts recognize an action, this is still undesirable for most authors. Unlike actions in copyright there is no automatic presumption of irreparable harm in actions in contract or tort making it more difficult to receive a preliminary injunction. It is also likely that only monetary damages will be awarded instead of a permanent injunction.[9]

The recent decision of the federal court in Jacobsen v. Katzer [10], not only confirmed the scope of copyright to cover open source works, but may have also provided authors of open source works an action in copyright for infringement of conditions typically found in moral rights. The court accomplished this by showing that the prima facie non-economic license restrictions such as attribution, should actually be considered economic benefits and thus be protected under copyright. The court reasoned that just because an author gives a license for no monetary consideration, does not mean that they have relinquished all economic rights. While a license for monetary consideration may be the standard method of licensing to create income, releasing for free public use can also provide economic benefits because the author creates a reputation and generates market share for their programs. [11]

While this decision provides greater clarity of copyright protection for open source works, it is unclear if the reasoning could also be extended to works with a traditional copyright license. Indeed, why should restrictions of attribution and other moral right with economic implications only be limited to open source works under American copyright law?


[1] David Canton, London Free Press online at:



[4] Copyright Act, R.S.C. 1985, c. C-42, s. 14.1(1)

[5] Ibid.

[6] Gilliam v. ABC, 538 F.2d 14, 20-21 (2d Cir. 1976)

[7] Ibid.

[8] Ibid.

[9] Cadence Design Systems v. Avant!  Corp., 125 F.3d 824, 826-27 (9th Cir. 1997), cert. denied, 118 S. Ct. 1795 (1998).

[10] Jacobsen v. Katzer, 2008 FED App. 1001N

[11] Ibid.