On August 13th, 2008 the United States Court of Federal Appeals handed down an opinion that further cemented the legal footing that gives “open content” licenses like Creative Commons (CC) their legal teeth. The decision of Jacobsen v. Katzer was monumental for the free culture and free software communities for a number of reasons. Public licenses, like CC’s six “Some Rights Reserved” copyright licenses and the one being litigated over, the Artistic License, grant rights to the public in general as opposed to a specific party. Where a private license between a filmmaker and a distribution company might stipulate that a particular distributor is given the exclusive rights to show a film, a public license might stipulate that anyone who comes across the film is allowed to show it so long as they give proper attribution and do not make modifications.

You can read my whole article here.

And over on BizCommunity.com, friend of the cause and South African lawyer Paul Jacobsen writes about some of the South African projects using Creative Commons in part 3 of his series about our licenses and the issues they implicate:

JoziKids, http://jozikids.co.za/, a wonderful child focussed website, uses Creative Commons licences to licence content created by its advertisers who create listings on the website rather than trying to take ownership of the content in order to provide the listings to visitors to the site. In this way Merle Dietrich strikes a balance between being able to publish rich listings on the site and not interfere unduly in the advertiser’s ability to exploit their content commercially outside the website.

Read on for Part 1, Part 2, and Part 3 of Paul’s series.

Mr Jacobsen and his collaborators did not need to go out and make contracts individually with every person around a global network who might download their software, or create a contractual web reaching into the far future and touching everyone who might one day modify their work. The licence allowed them, at low legal cost, to set up the terms of a global collaborative exercise. It allowed to share their work under generous terms, to create a “commons” of shared material on the basis of which all could innovate, and yet still to insist on requirements that would preserve that commons in the future.

The court agreed, as Boyle explains:

In a remarkable sentence, the court made clear that it understood the stakes of its decision. “Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago.” Advancing the arts and sciences is what intellectual property law is supposed to be about. And in a case about model railway enthusiasts, that is just what the court did. Our hats (or propellor-bearing beanie caps) should go off to it.

If you’ve followed the case, or read the full column (go do that now), you know that the openly licensed code in question is for controlling model railroads. How wonderful that this case upholding modern tools for building collaborative culture involves an age old (well, at least a century old) tinkering culture.

The show, which originally aired on American University’s WAMU 88.5 FM, touches on the decision specifically but also open source tools in general, giving context to why this decision was so important and how it relates to the commons more broadly. You can listen to the program (Real Media or Windows Media Player streams available; VLC can be used for the Windows Media stream) at the Kojo Nnamdi Show site.

The United States Court of Appeals held that “Open Source” or public license licensors are entitled to copyright infringement relief.

The Court of Appeals for the Federal Circuit (CAFC), the leading IP court in the United States, has upheld a free copyright license, while explicitly pointing to the work of Creative Commons and others. The Court held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work.  As a result, licensors using public licenses are able to seek injunctive relief for alleged copyright infringement, rather than being limited to traditional contract remedies.

Creative Commons founder Lawrence Lessig explained the theory of all free software, open source, and Creative Commons licenses upheld by the court: “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.” Lessig said the ruling provided “important clarity and certainty by a critically important US Court.”

Today’s ruling vacated the district court’s decision and affirmed the availability of remedies based on copyright law for violations of open licenses.  The federal court noted that ignoring attribution requirements contained in the license caused reputation and economic harm to the original licensor. This opinion demonstrates a strong understanding of a basic economic principles of the internet; attribution is a valuable economic right in the information economy.  Read the full opinion.(PDF)

Creative Commons filed a friends of the court brief in this case. Thanks to all the cosponsors Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation.  Significant pro bono work on this brief was provided by Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society. Read the full brief.

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