In Jacobsen v. Katzer, the Federal Circuit held that open source licenses are indeed licenses and not merely contracts.1 This is an important decision due to the remedies available under the Copyright Act versus contract law. But what do monetary damages under U.S. copyright law look like? More specifically, how much could an OSS license non-compliance action cost a company that loses such a suit? Two lawyers endeavoured to answer just that question in a presentation in mid-May at the Open Source Business Conference in San Francisco. Jeffery Norman and Vladimir Khodosh of Kirkland & Ellis outlined the various sources of monetary remedies for FOSS license non-compliance, with a particular focus on the ability to recover a portion of the infringer’s profits.
Under contract law, the non-breaching party may recover actual damages. The general goal is to put the non-breaching party in as good a position as he would have been had the contract been performed. But what reasonably foreseeable damages could be expected to be recovered when the software was obtained for no monetary cost?
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