Comments on: huge and important news: free licenses upheld Blog, news, books Thu, 12 Oct 2017 08:56:00 +0000 hourly 1 By: georgea78 Thu, 04 Dec 2008 12:43:27 +0000 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.

By: Affordable Essay Mon, 24 Nov 2008 13:37:07 +0000 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

By: ann321 Mon, 24 Nov 2008 08:35:56 +0000 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.


By: Design Wed, 22 Oct 2008 15:38:20 +0000 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.

By: IPEB Law Blog Sun, 24 Aug 2008 12:48:59 +0000 It’s like the civil rights movement. One step at a time. Creative Commons and the ACLU.

By: movablemike Tue, 19 Aug 2008 02:45:35 +0000 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,

By: sfphollywood Sun, 17 Aug 2008 09:34:37 +0000 Here’s a link to a two-minute video by a lawyer who agrees with the court of appeals:

By: Peter Brink Sat, 16 Aug 2008 21:12:34 +0000 @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.

By: Bryan Pfaffenberger Fri, 15 Aug 2008 06:50:34 +0000 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

By: Robert Horning Fri, 15 Aug 2008 05:21:53 +0000 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


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.

By: David Gerard Fri, 15 Aug 2008 01:50:52 +0000 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

By: LouS. Fri, 15 Aug 2008 01:23:25 +0000 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.

By: BoredQuiz Thu, 14 Aug 2008 23:13:34 +0000 I’ve always wondered how these licenses would affect the right of the original user to change the license of the material.

By: GrayHairPgmr Thu, 14 Aug 2008 23:11:24 +0000 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.

By: Stewart Hall Thu, 14 Aug 2008 22:57:13 +0000 +

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.


By: Nick Mattern Thu, 14 Aug 2008 21:53:02 +0000 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.

By: erichansa Thu, 14 Aug 2008 21:21:51 +0000 The news is great but the article is crap.
Dugg for being open source.

By: saulgoode Thu, 14 Aug 2008 20:55:43 +0000 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).

By: Jim McDish Thu, 14 Aug 2008 20:53:30 +0000 Free anything is good for me! I like free!


By: Keith Gaughan Thu, 14 Aug 2008 15:54:11 +0000 @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.

By: andrew garton Thu, 14 Aug 2008 15:26:51 +0000 How pertinent is such a decision for other jurisdictions?

By: Simon Hibbs Thu, 14 Aug 2008 13:20:23 +0000 @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

By: Russ Nelson Thu, 14 Aug 2008 09:50:10 +0000 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.

By: Mary T. Johnson Thu, 14 Aug 2008 09:14:03 +0000 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.

By: trenchant Thu, 14 Aug 2008 08:24:50 +0000 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.