August 13, 2008  ·  Lessig

So for non-lawgeeks, this won’t seem important. But trust me, this is huge.

I am very proud to report today that the Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it. Congratulations especially to Chris Ridder and Anthony Falzone at the Center.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.

  • http://mdurwin.wordpress.com Michael Durwin

    How or does this effect the Orphaned Works Bill now before Congress, that aims to strip the rights of visual art creators who have not followed a prescribed process to copyright their works and allows corporations to undertake a “reasonable” search for the copyright holder? We all know what corporations consider “reasonable” efforts.
    More info: http://tinyurl.com/6zfuof

  • Tom Poe

    Very nice! Being able to hold cc licenses on equal footing with copyright makes a huge difference for sure. Discussion now turns to asking why anyone would want traditional copyright (and all its baggage), when they can have cc license unto perpetuity. Ya gotta luv it!

  • spot

    It is worth noting that the license in question here (Artistic 1.0) is not considered a “Free Software License” by the FSF (its successor, Artistic 2.0 is).

  • http://spaz.mindstab.net spazdor

    You are correct, spot. But FSF-compliance doesn’t appear to be the big point; regardless of the specifics of the license, the precedent is set, and there seems no principled reason why this license should be protected on penalty of copyright infringement and others (such as CC) should not.

  • VanL

    The language of the decision considers CC licenses and lumps them generally with open source licenses into a catch-all “public license” category. So while this decision is not explicitly about CC – and in fact not explicitly about anything other than the Artistic License v.1, the broad language and the consideration of “open source” and “public licenses” generally make this likely to be followed.

    That, and the fact that it is the CAFC. (Wow, clarity and correctness at the Federal Circuit!)

  • VanL

    Oh, and congratulations to those at the Stanford Center for Internet and Society!

  • http://larsjuhljensen.wordpress.com Lars Juhl Jensen

    Excellent news indeed! I have run into several people in the scientific community who questioned that Creative Commons licenses (or other copyright-based “free” licenses) would really be legally binding considering that the recipient of the material did not sign anything. Having a court decision in the bank should be a big help when trying to convince people.

  • http://www.bigroom.org/wordpress Epicanis

    Silly question: what exactly distinguishes a “covenant” from a “condition” in this context? If this were a “covenant” rather than a “condition”, would that mean the violator is subject to lawsuit for breach of contract but doesn’t automatically lose the copyright license (whereas the loss of the license is automatic for a violation of a “condition”)?

  • James Day

    While the license decision is good, the subject of the case is “decoder definition files”. Is there any original creative work in them or are they fundamentally no more than a factual definition of the interfaces of a piece of hardware and hence no more eligible for copyright protection than a telephone directory? Does Jacobsen have a likelihood of success on remand?

  • Jim

    I find it difficult to see this as good news. Doesn’t this decision allow creative authors to place extremely restrictive “conditions” on their licenses? Wouldn’t violations of these conditions would result in statutory damages? For example, under this ruling if a license allows the installation of software on only one computer and a consumer installs it on both a home computer and a laptop, wouldn’t they be liable for statutory damages? For a more extreme example, couldn’t a musician releases music with a “condition” that the music not be copied onto an iPod (or only copied onto a Zune)?

  • http://www.negativesoundinstitute.com gurdonark

    This is huge, and important. This opinion not only gives guidance in line with the theory of a number of “open” licenses, but it also gives guidance on the condition/covenant issue that may help future drafting. For CC, for the Free Art license, and a series of other schemes, this is a real advance.

  • Sam I Am

    This clarity is good for everyone. Now if we can just help online pirates refind their morals to offer the same respect and regard for all copyright law that they’ll likely have for the Creative Commons licence, maybe we’d be on to something.

    Until the promise of online product distribution is secured and piracy draws to a close, those who willfully infringe are holding back the digital future, not leading towards it.

  • http://www.ccil.org/~cowan John Cowan

    Jim: yes, that’s true. But when you consider that the overwhelming majority of all licenses on copyrighted content say “no use or reuse except as we say”, the fact that less restrictive licenses have been upheld is very important.

  • rmuser

    Until the promise of online product distribution is secured and piracy draws to a close, those who willfully infringe are holding back the digital future, not leading towards it.

    I’m afraid to ask, but exactly what kind of future are you envisioning for the internet? And what of those who disagree with you?

  • Joe in Australia

    I’m with Jim: this is not unalloyed good news. The recent summary judgment in MDY v Blizzard supported the argument that loading a software program into RAM is “copying” it, and that doing so against the terms of a license can be a breach of copyright. All modern computers load their software into RAM before executing it, so this has implications for all software.

    I think most people had assumed that a piece of software was for you to use as you pleased, and that any restrictions placed upon the use of an authorised copy could only come about as a result of contract. For instance, you might sign a contract to use the software for no more than a year at a time, and if you breached the contract you would be liable (only) for contractual damages. The software maker would need to prove that it had suffered damage by your breach of the contract and it would receive reasonable damages – in this case, the cost of “renewing” the use of the software for the time you had used it in breach of the contract.

    These decisions taken together imply that a software maker can impose a license upon every person who uses a piece of software, and that this license is backed by statutory damages. For example, Microsoft could have a “home” and a “business” license for Microsoft Word, and require people using their software commercially to buy the (much more expensive) business license. If you used a copy of Microsoft Word to earn money you would be liable not merely for actual damages caused by your breach of contract (the difference in cost between the home and business versions) but for statutory damages which will apply every time you run the software. These decisions open the door to a software RIAA that would chase breaches of license, not copyright, and the licenses would be designed to make it easy to detect breaches. The most obvious thing to include in a license is a way of enforcing compliance: you may not use this software without a live Internet connection reporting your activities.

    It gets even worse than this, though. I’m not a lawyer nor expert in USA law, but this might trigger all sorts of other laws. Suppose you run a business from home, and while you don’t have a commercial license for Microsoft Word you do have have a “home use only” license. Is this probable cause for a belief that you are breaching Microsoft’s license when you type a business letter (since you might actually be typing your letters in Windows Wordpad, I guess)? Do you trigger the DMCA if you let someone use your copy in breach of a license? The RIAA has shown that collecting statutory damages can itself be profitable, even apart from the aim of enforcing copyright. I think we may have cause to regret this decision.

  • trenchant

    Prof. Lessig, I have to disagree that this decision will be far-reaching. You call the Federal Circuit “THE ‘IP’ court in the US,” but it isn’t: it only has exclusive jurisdiction over patent claims. As the court itself recognized, “an appeal concerning copyright law and not patent law is rare in our Circuit.” Indeed, it is; the Federal Circuit doesn’t have jurisdiction over copyright claims, unless they happen to be paired with a patent claim, as this case was. So, I doubt that this will have much of an effect at all, unless other circuits decide that Judge White’s reasoning is persuasive.

  • Mary T. Johnson

    An argument can be made that copyright law should be somewhat like 19th Century US mining law. That is, that anyone can stake a claim, but you have to improve your claim annually to keep it. This redefines *government* copyright as for both the creator and the market.

    If you want CC or other non-governmental copyright, fine, and you are still protected. But if you want a government monopoly license on what you have created, you have to accept that the protection is not just for you, it is for the market as well.

    For example, Disney Corporation owns the government copyright for both Mickey Mouse and the movie Song of the South. Mickey Mouse is very profitable to them on an annual basis, and is available for retail purchase and use from Disney. Therefore, with this change to copyright law, they should be able to keep Mickey Mouse as their exclusive property until it is no longer profitable to them.

    However, Disney refuses to retail sell the movie Song of the South, for whatever reasons. And while that is their business decision, they have no legitimate right to government protection of a product they refuse to retail. They should be able to choose not to sell it themselves, but they should not be able to use the law to prevent others from selling the movie, if they possess it in a form that can be sold.

    And this last part is important. If Disney produced the movie, but refuses to release it, it should not be compelled to do so. But once it has retailed it, or otherwise made it available, Disney should not be able to close the door, refuse to sell it, and refuse to let anyone else sell it.

    Importantly, there are vast libraries of copyrighted content that have been retailed, but are no longer released for retail. This permits and even encourages abusive behavior from these library owners to the original creators of these works. The entire output of many artists and writers is held by corporations that have contractually stripped the artists of any and all rights to their works, and even any future works, yet refuse to publish or retail those works.

    If the law was changed in this manner, incredible amounts of content would enter the market because the copyright holder is unwilling to maintain the copyright by retail, but many other entrepreneurs are willing, reproducing previously released content.

    One provision to this that still needs consideration would be the reversion of copyright rights to the original creator. For decades, a provision has existed in many media contracts that artists are just fee for service and have no rights to their creations. And congress not too long ago passed legislation to reinforce the validity of this contractual theft.

    That is, reproduction, marketing and sales should be to a great extent excluded from government copyright protection.

  • http://blog.russnelson.com Russ Nelson

    Jim and Joe: that’s why you want to stick with Open Source Initiative Approved(tm) licenses. The presence of our trademark and the green keyhole logo ensures that the bad outcomes you fear will not happen.

  • Simon Hibbs

    @Joe in Australia: No software creator is required to release, distribute or license their software in any way. If they do so. In fact much free software already has it’s commercial use restricted in the way you describe, for example MySQL, while the source code is released under the GPL, cannot be used for some purposes by businesses without a seperate commercial license. Microsoft restrictsthe number of client conenctions allowed into their server software and you have to buy licenses for a certain number of allowed connections. These sorts of license restrictions are already commonplace.

    What this new ruling means is that the (generaly) much more open, less restrictive free software licenses are also enforceable under US law, which is great news.

    Simon Hibbs

  • http://agarton.wordpress.com/ andrew garton

    How pertinent is such a decision for other jurisdictions?

  • http://talideon.com/weblog/ Keith Gaughan

    @andrew garton: In common law jurisdictions, decisions in the courts of other common law jurisdictions is generally used as a source of precedent, which means that if this kind of thing comes up in, say, Australia, Ireland, &c., the courts there will look at the US decision as precedent. This is a good thing.

  • Jim McDish

    Free anything is good for me! I like free!

    JT
    http://www.Fireme.To/udi

  • saulgoode

    Quoting Jim:

    > I find it difficult to see this as good news. Doesn’t
    > this decision allow creative authors to place
    > extremely restrictive “conditions” on their licenses?
    > Wouldn’t violations of these conditions would
    > result in statutory damages?

    To be a copyright license (as opposed to an agreement or covenant), the terms should not place conditions on any activity that is not amongst copyright’s exclusive rights (distributing duplicate copies, creating derivative works, and publicly performing or broadcasting). A “license” should do just that: grant permission to do something you otherwise would be prohibited from doing.

    Dictating usage is not an exclusive right of copyright and a license which would impose restrictive conditions on usage would not be considered a copyright license but a contract or covenant. A copyright holder could indeed demand whatever conditions he wants in exchange for the recipient being permitted to engage in those “exclusive activities” (e.g., you must put the duplicate copy in a green envelope before giving it to someone else) but he cannot just stipulate ANYTHING and have it backed up by statute (e.g., he couldn’t say you must only read the book while standing, or you can only run the software on computer X).

  • http://www.misterinfo.de/users/erichansa erichansa

    The news is great but the article is crap.
    Dugg for being open source.

  • http://www.nickmattern.com/category/virtualization/ Nick Mattern

    This is great news. Now if guys like VMWARE could go the same route and OSS their stuff versus giving it away for free. You’d avoid issues like This if things were community driven. I was down for over 3 days because of the glitch and not a single thing could be done. You don’t get this with OSS, well, not usually anyway.

  • Stewart Hall

    +

    Many of us also contributed to Bob Jacobson’s fighting fund to see this case prosecuted. Bob was the principal one having to put his personal money up for it.

    I hope there is some recovery now available for him.

    +

  • GrayHairPgmr

    This is truly a landmark! I have managed two for profit software development / provider entities inside Fortune 400 corporations, and gave a lot of thought to the practicality of the software business. I tend to take a pragmatic view of things and in the final analysis no software vendor is able to override the right, or the ability, of the owner of a general purpose computer to -run the programs he sees fit- (0th Freedom, Stallman). They can make it more difficult, they can annoy everyone that actually paid for it, but if you deliver the software in a form consistent enough to actually run on a target computer, it is consistent enough to steal. And yes, I understand about crypto algorithms and hardware interlocks and all the other clever tricks to -protect- software, but the simple truth is, if you can run it, you can copy it. If you can copy it, you can feed it as data to other programs and therefore, can reformat it into a more portable form.
    I only succeeded in turning around my profit picture when I stopped looking at my product as a commodity and began to structure it as a service. Then it dawned on me that IBM had been doing that very thing for some time. In my not so humble opinion software IS a service, the code is only one delivery vehicle. SaaS is redundant and proprietary software is an oxymoron. This ruling begins a process of building a meaningful legal framework for software commerce.

  • http://www.boredquiz.com/ BoredQuiz

    I’ve always wondered how these licenses would affect the right of the original user to change the license of the material.

  • LouS.

    Mary T. Johnson said: “One provision to this that still needs consideration would be the reversion of copyright rights to the original creator. For decades, a provision has existed in many media contracts that artists are just fee for service and have no rights to their creations. And congress not too long ago passed legislation to reinforce the validity of this contractual theft.”

    I am a computer programmer who spends their entire day “creating” works, on a “fee for service” basis. I would love for someone to explain to me why authors, musicians, etc (‘tranditional creators’) belong on some sort of special pedestal where their creations are somehow ‘owned’ by them, but the millions of other people (architects, interior decorators, computer programmers, etc.) who create ‘unique’ things (both beautiful and utilitarian, at their best) either don’t deserve the protections, or are somehow stupid for creating things for a salary. “Contractual Theft” is such a ridiculous phrase. If one agrees to deliver something creative to someone else at a price they think is fair, who is anyone else to criticize them.

  • http://davidgerard.co.uk/notes/ David Gerard

    This is a fantastic ruling. I’ve suggested someone make a post to the Wikimedia blog about it – probably Erik Moeller, since he wrote the Free Content Definition

  • Robert Horning

    The MySQL situation noted by Simon Hibbs above isn’t quite correct.

    You can use MySQL in a business setting. What you can’t do is sell or redistribute software that accesses the MySQL databases using the API libraries unless that software is:

    1) Also licensed under the GPL

    or

    2) You have obtained a separate commercial license for using MySQL

    In other words, the software is dual-licensed, and you can select which license you want to use: the proprietary license or the GPL.

    Frankly I think MySQL A.B. is out to lunch with this interpretation of the GPL, but it is a very fine point of the whole philosophy of open source software, and they are trying to earn money from the sales of their commercial licenses by using the GPL version of their software as a teaser. On the positive side, even the commercial license is quite cheap compared to other database licenses, and on a practical side you only have to pay for each server that uses the database and not each client. As a developer you also have some excellent support if you are using licensed copies of the database.

    So you can run a commercial business with MySQL software “for free”, but it is somewhat limited. MySQL’s interpretation of this is irrelevant with this ruling, as it would have to dive into the fine points of what exactly the GPL says you can and can’t do with the software.

    On the whole, this is a huge ruling, and it is a positive step forward for all free content licenses.

  • Bryan Pfaffenberger

    A properly conceived open source license restricts its downstream manipulation only with respect to the exclusive rights of the copyright holder (namely, to copy, distribute, modify, or perform a work publicly), so I see nothing pernicious in this ruling. There is, it seems, much to celebrate. The district court’s decision, I believe, reflected an ideological bias that says, in effect, that if you give something away, it isn’t worth anything. There is overwhelming evidence that collaborative open source endeavors are capable of creating wealth. (Consider, for example, science.) In this decision, the CAFC declares its acceptance of this principle.

    What intrigues me is how the patent infringement aspect fits in. The decision notes that its jurisdiction is related to the inclusion in the case of a patent infringement allegation. Since this appeal concerned the preliminary injunction, and not the substance of the case, it isn’t surprising that this matter doesn’t come up again in the CAFC’s decision. Still, it will presumably play out now that the case has been remanded.

    I don’t know the details, but it’s my impression, based on allegations I’ve read in model railroading blogs and forums, that Kam not only violated the terms of the Artistic License in its appropriation of the plaintiff’s technology, but also obtained a patent that, if its validity were sustained, would exclude the plaintiff from making, using, or selling this technology. In other words, it seems to me that there is a possibility of a very interesting collision between copyright and patent law in this case, which is far from over.

    -B. Pfaffenberger, Science, Technology, and Society, UVa

  • Peter Brink

    @andrew garton
    For Civil Law jurisdictions it’s of little value. Common Law case law is at best used as inspiration by legal scientists but have near to zero value in court. Cases about the validity of the GPL has been settled in European courts, both in Germany and the Netherlands, proving that the GPL is a valid contract. Whether a Civil Law court will agree to that even a minor breach of contract (such as failure to attribute) will have the effect of termination of the rights to use the work and that breach of the terms = copyright infringement, remains to be seen.

  • http://jurisvodcast.com sfphollywood

    Here’s a link to a two-minute video by a lawyer who agrees with the court of appeals:

    http://jurisvodcast.com/2008/08/17/open-source-copyright-infringement/

  • http://www.movablemike.org movablemike

    I would like to echo a point raised earlier: Do we have any sense of how persuasive this decision may be in other federal courts? (The Federal Circuit only adjudicates disputes concerning patents — not copyrights.) Thank you,
    -Mike

  • http://ipeblawblog.blogspot.com IPEB Law Blog

    It’s like the civil rights movement. One step at a time. Creative Commons and the ACLU.

  • http://www.diwe-design.de Design

    If I undestand correctly, this should really have a great impact on a lot of other “free-software” law suits.
    Thanks for the information. And congratulations from my side, too.

  • http://www.inspire-itsolutions.com ann321

    Stanford’s Center for Internet and Society brought their student blogs on line just before Thanksgiving last year. They are still growing and have not yet become as regularly published as the blogs at Harvard’s Berkman Center for Internet & Society. It is encouraging to see so many sites for people to discuss law coming to the net. There are those at schools, and sites like Groklaw.
    ————————————-
    Ann

    SEO

  • http://www.essays-for-sale.net/ Affordable Essay

    The software maker would need to prove that it had suffered damage by your breach of the contract and it would receive reasonable damages – in this case, the cost of “renewing” the use of the software for the time you had used it in breach of the contract.Affordable Essay

  • http://lessig.org/blog/2008/08/huge_and_important_news_free_l.html georgea78

    I am very proud to report today that the Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it.
    ——————————-
    georgea

    http://lessig.org/blog/2008/08/huge_and_important_news_free_l.html