Good news for open source/Creative Commons licensing proponents. It seems the Court of Appeals for the Federal Circuit has issued an opinion in Jacobsen v. Katzer.
The case involved some open source code which was licensed under the Artistic 1.0 license. The District Court had determined that the alleged infringement constituted only a breach of contract, rather than copyright infringement, because the license was overly broad. The distinction between covenant and condition is important because a condition would revoke the license, while breaching a covenant would be a simple contract issue. This impacts evaluating the criteria for issuing a preliminary injunction: a mere breach of contract cause of action does not have a presumption of irreparable harm–so no injunction.
The CAFC relied heavily on the language of the license in its analysis, noting that the license used the term “condition” frequently and that other language was consistent with creating conditions under California law (the applicable law in this appeal).
Reading the terms of the license as conditions, which I think is pretty clear in this case, means that a violation of the condition results in revocation of the license, and therefore the use in question is infringing.