Free, But Not Without Risk: Open Source Licensing in the Wake of Jacobsen v. Katzer


Sam is the chief technology officer of a small software vendor. At the request of his customers, he kicks off a new project to redesign and upgrade his company’s flagship product. During the design phase, one of his engineers suggests that several person-years of effort can be saved by incorporating a large software module from a popular “open source” program. After crunching numbers and finding that the savings add up to nearly half a million dollars, Sam green-lights use of the module. What Sam does not realize, however, is that although his decision saves time and improves his bottom line, it may also put his company at risk of a lawsuit for copyright infringement or breach of contract.

Closed and Open Source Software

Computers execute programs that are compilations of instructions and data in binary format.1 In the early days of computing, software developers would write programs either directly in binary format or in assembly language, which can then be converted into binary format. However, due to its intricate nature, developing software in assembly language or binary format is time consuming and error prone. Over time, software developers found it more efficient to write programs in high-level languages, and then translate, or compile, their high-level language programs to binary format. High-level languages express programs in source code that, in some cases, resembles English, though in a rigid and logical fashion. Thus, a high-level language is typically easier to write and read than assembly language or binary format, and nearly all modern computer programming is carried out in high-level languages....

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