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Cite as 535 F.3d 1373 (Fed. Cir. 2008)

of the ‘‘duty to assist’’. (JA 41). Howev-er, a breach of the ‘‘duty to assist’’ alonedoes not constitute CUE.

Cook v. Principi,

318 F.3d 1334, 1341 (Fed.Cir.2002). Wecannot conclude that more is required bythe first prong of the

Russell

test. We also cannot conclude that the deci-sion of the RO contained an ‘‘undebatable’’error. The RO made its decision on thebasis of PTSD being ‘‘not found on exam’’by the VA examiner. (JA 41). The RO atthe least knew of the other medical rec-ords. For us to hold that the decision of the RO in this case was based on an‘‘undebatable’’ error, we would have tohold that no reasonable adjudicator could weigh the evidence in the way that theadjudicator did. This legal determination would, on the record before us, be un-founded. A reasonable adjudicator could,after reviewing the reports from the VA examiner and Willsey’s other records, de-termine that greater weight should be giv-en to the VA examiner’s report, particu-larly because that report was conductedespecially for the purpose of determiningservice connection and was the last intime. Even were we to disagree with theadjudicator’s decision, we would not befree to re-weigh the evidence to concludethat this decision, even if it were at leastarguably not the best one, was so unrea-sonable as to result in an undebatableerror.Finally, the record and the law as theyexisted at the time of the determination donot compel a finding of CUE in the 1983determination. Willsey seems to contendthat, because he had two prior diagnosesof PTSD, the adjudicator was required tofind that he was disabled and there wasservice connection in his case. But, Will-sey was also later diagnosed as not havingPTSD by a VA examiner, after the twoearlier examinations. Willsey does notpoint to any rule or regulation that statesthat earlier examinations, if they aregreater in number, outweigh later exami-nations and that the adjudicator thereforeought to have granted him disability. Without such a rule it again seems that Willsey is asking us to re-weigh the evi-dence, something we are not free to do.ConclusionThe Court recognizes the very real diffi-culties facing Mr. Willsey in seeking bothrecognition and treatment for PTSD. Werecognize as well that the VA’s case pro-cessing at issue here was arguably lessthan perfect in all of the various steps of its evaluation and treatment of Mr. Will-sey’s condition. None of these miscues,however, rise to the level of a clear, unmis-takable error. Therefore, the decision of the Veterans Court denying an earlier ef-fective date to Willsey is affirmed.

Affirmed

Robert JACOBSEN, Plaintiff–Appellant, v.Matthew KATZER and Kamind Associ-ates, Inc. (doing business as KAM In-dustries), Defendants–Appellees.No. 2008–1001.

United States Court of Appeals,Federal Circuit. Aug. 13, 2008.

Background:

Copyright holder filed ac-tion against competitor alleging infringe-ment of copyright to computer program-ming code and also sought declaratory judgment that patent issued to defendant

1374

535 FEDERAL REPORTER, 3d SERIES

was not infringed by copyright holder and was invalid. The United States DistrictCourt for the Northern District of Califor-nia, Jeffrey S. White, J., 2007 WL 2358628,denied holder’s request for preliminary injunction. Holder appealed.

Holdings:

The Court of Appeals, Faith S.Hochberg, District Judge, United StatesDistrict Court for the District of New Jer-sey, sitting by designation, held that:(1) appeal from lawsuit that included notonly claim for copyright infringement,but also sought declaratory judgmentthat patent issued to defendant wasnot infringed by copyright holder and was invalid, arose in part under patentlaws;(2) attribution and modification transpar-ency requirements in open source li-cense created conditions to protecteconomic rights in granting of public li-cense, and thus were enforceable; and(3) holder stated prima facie case of copy-right infringement. Vacated and remanded.

1. Federal Courts

1137

Appeal from lawsuit that included notonly claim for copyright infringement, butalso sought declaratory judgment that pat-ent issued to defendant was not infringedby copyright holder and was invalid, arosein part under patent laws, and thus Feder-al Circuit possessed appellate jurisdictionover appeal of finding by district court thatcopyright holder did not have cause of action for copyright infringement, althoughappeal concerned copyright law and notpatent law. 28 U.S.C.A. §§ 1292(c)(1),1338(a), 2201(a).

2. Courts

96(7)

Federal Circuit looks to the interpre-tive law of the regional circuit for issuesnot exclusively assigned to the FederalCircuit.

3. Federal Courts

815

Under Ninth Circuit law, an ordergranting or denying a preliminary injunc-tion will be reversed only if the districtcourt relied on an erroneous legal premiseor abused its discretion.

4. Federal Courts

862

A district court’s order denying a pre-liminary injunction is reversible for factualerror only when the district court rests itsconclusions on clearly erroneous findingsof fact.

5. Injunction

138.1

When determining whether to issue apreliminary injunction, the Ninth Circuitrequires demonstration of (1) a combina-tion of probability of success on the meritsand the possibility of irreparable harm; or(2) serious questions going to the merits where the balance of hardships tips sharp-ly in the moving party’s favor.

6. Copyrights and Intellectual Property

10.4

Attribution and modification transpar-ency requirements in open source comput-er software license created conditions toprotect economic rights in granting of public license, and thus were enforceableunder Copyright Act, since conditions gov-erned rights to modify and distribute com-puter programs and files included indownloadable software package and direct-ly served to drive traffic to open source in-cubation page and to inform downstreamusers of open source licensing collabora-tion project, which was significant econom-ic goal of copyright holder.

7. Copyrights and Intellectual Property

67.3

Copyright holder stated prima faciecase of copyright infringement on allega-tions that he held copyright for certainmaterials distributed through his Internet website pursuant to open source computer

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Cite as 535 F.3d 1373 (Fed. Cir. 2008)

software license and competitor copied,modified, and distributed portions of software as part of other software in violationof open source license.

8. Copyrights and Intellectual Property

Generally, a copyright owner whogrants a nonexclusive license to use hiscopyrighted material waives his right tosue the licensee for copyright infringementand can sue only for breach of contract;however, if a license is limited in scope andthe licensee acts outside the scope, thelicensor can bring an action for copyrightinfringement.

9. Contracts

218

Under California contract law, thephrase, ‘‘provided that,’’ typically denotes acondition.

10. Copyrights and Intellectual Property

Copyright holders who engage in opensource computer software licensing havethe right to control the modification anddistribution of copyrighted material; thechoice to exact consideration in the form of compliance with the open source require-ments of disclosure and explanation of changes, rather than as a dollar-denom-inated fee, is entitled to no less legal rec-ognition under the Copyright Act.

11. Copyrights and Intellectual Property

10.4

The choice to exact consideration inthe form of compliance with the computersoftware open source requirements of dis-closure and explanation of changes, ratherthan as a dollar-denominated fee, is enti-tled to no less legal recognition under theCopyright Act.

12. Copyrights and Intellectual Property

13. Copyrights and Intellectual Property

A copyright holder can grant the rightto make certain modifications, yet retainhis right to prevent other modifications. Victoria K. Hall, Law Office of VictoriaK. Hall, of Bethesda, MD, argued forplaintiff-appellant.R. Scott Jerger, Field Jerger LLP, of Portland, OR, argued for defendants-ap-pellees. Anthony T. Falzone, Stanford Law School, Center for Internet and Society, of Stanford, CA, for amici curiae CreativeCommons Corporation, et al. With him onthe brief was Christopher K. Ridder.Before MICHEL, Chief Judge, PROST,Circuit Judge, and HOCHBERG,* DistrictJudge.HOCHBERG, District Judge. We consider here the ability of a copy-right holder to dedicate certain work tofree public use and yet enforce an ‘‘opensource’’ copyright license to control thefuture distribution and modification of that work. Appellant Robert Jacobsen (‘‘Ja-cobsen’’) appeals from an order denying amotion for preliminary injunction.

Jacob-sen v. Katzer,

No. 06–CV–01905 JSW, 2007 WL 2358628 (N.D.Cal. Aug. 17, 2007). Ja-cobsen holds a copyright to computer pro-

* The Honorable Faith S. Hochberg, DistrictJudge, United States District Court for theDistrict of New Jersey, sitting by designation.