July 2011

An article I've written has been published as the lead submission for the July/August 2011 edition of Landslide Magazine, the official publication of the American Bar Association's Intellectual Property Section. The article is entitled, "Open Source Licensing and the Viability of the Free Software Movement." The article discusses the impact of the Ninth Circuit decision of MDY Industries v. Blizzard Entertainment. In that case, the Ninth Circuit elucidated a new rule that a contract obligation will be considered a license condition only if the obligation contains a "nexus" to the exclusive rights accorded to the copyright owner. The Ninth Circuit's reasoning as applied to open source licenses would render notice, attribution and copyleft obligations in those licenses as mere contract covenants and not scope-limiting conditions, foreclosing the possibility of recovery of copyright remedies. The ruling therefore casts considerable doubt on the ability of open source licensors to effectively enforce these obligations.