Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License

Texas Intellectual Property Law Journal, Vol. 17, p. 335, 2009

29 Pages Posted: 6 Dec 2008 Last revised: 14 May 2014

Date Written: July 9, 2009

Abstract

The Federal Circuit upheld the Artistic License in Jacobsen v. Katzer, establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case's greater significance lies elsewhere. Jacobsen v. Katzer teaches valuable lessons about conditions and covenants in license contracts, lessons that apply to licenses of all persuasions. Moreover, the case raises an important issue about the interplay between contract and intellectual property law: can licensors manipulate the distinction between covenants and conditions in such a way that upsets the delicate balance in copyright law? The article explores the lessons taught by Jacobson v. Katzer and the unresolved issue that it leaves, concluding with a proposal that supports the business model innovation characterized by open source licensing.

Keywords: open source, license, jacobsen, katzer, license condition, covenant, software contract, software license, Artistic license, GPL

Suggested Citation

Gomulkiewicz, Robert W., Conditions and Covenants in License Contracts: Tales from a Test of the Artistic License (July 9, 2009). Texas Intellectual Property Law Journal, Vol. 17, p. 335, 2009, Available at SSRN: https://ssrn.com/abstract=1311758

Robert W. Gomulkiewicz (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=74

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