From the Federal Circuit Jacobsen opinion, summarizing the action below, which to that point was motion practice on preliminary injunction:

> ... The District Court found that Jacobsen had a cause of action only for breach of contract, rather than an action for copyright infringement based on breach of the conditions of the Artistic License. Because a breach of contract creates no presumption of irreparable harm, the District Court denied the motion for a preliminary injunction.
>
> Jacobsen appeals the finding that he does not have a cause of action for copyright infringement. ...

The appellate court vacated and remanded.

In its analysis:

> Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder. The Eleventh Circuit has recognized the economic motives inherent in public lenses, even where profit is not immediate. See Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1200 (11th Cir.2001) (...).

Summing up the issue at bar:

> The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license.

In construing the terms of the license, the Federal Circuit explicitly references state contract law:

> Under California contract law, "provided that" typically denotes a condition.

Artifex v. Hancom is important in part because there wasn't any real dispute on contract enforcement. But the license at issue was GPLv2, whose author, the FSF, had long insisted it was just a license. From the terms:

> You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

In the order on motion for partial summary judgment, the court notes:

> The license was not free in the sense that there was no consideration owed under the agreement.

It then cites Jacobsen on "lack of money changing hands".

Later:

> Plaintiff gave away its Ghostscript program in consideration for the user making its software open source, which Defendant does not dispute it did not do. The record supports a finding that Defendant received a benefit (the use of Ghostscript) at Plaintiff's expense by depriving Plaintiff of the value of having Defendant's software open source.