Gomulkiewicz on Open Source Software Licenses

Robert W. Gomulkiewicz, Enforcement of Open Source Software Licenses: The MDY Trio's Inconvenient Complications, 14 Yale J. L. & Tech. 106-37 (2011), available at http://ssrn.com/abstract=1790022.

In his latest article, Professor Gomulkiewicz carefully examines three software licensing cases decided by the Court of Appeals for the Ninth Circuit: Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010) [Court Westlaw LexisNexis]; MDY Industries v. Blizzard Entertainment, 629 F.3d 928 (9th Cir. 2010) [Court Westlaw LexisNexis]; and UMG Recordings v. Augusto, 628 F.3d 1175 (9th Cir. 2010) [Court Westlaw LexisNexis], which he calls the “MDY Trio.” He suggests a refinement to the license versus first sale test articulated by the Ninth Circuit in these cases, as well as an alternative approach to differentiating between a contract covenant and a license condition.

The article is organized in three sections. Section I describes open source licenses and enforceability under the Court of Appeals for the Federal Circuit’s opinion in Jacobsen v. Katzer, 535 F.3d 1373 (Fed. Cir. 2008) [Court Westlaw LexisNexis]. Section II discusses the first sale doctrine and end user license agreements, and further delves into the “inconvenient complications” arising from the MDY Trio. Section III explains the difference between conditions and covenants, and proposes a multifactor, sliding scale approach in the context of injunctive relief.