Software Freedom Law Center
Last year we started a new campaign tradition — the Commoner Letter series. As I’ve said before, and will definitely say again, the campaign is about building support — rallying our community members around the importance of supporting Creative Commons and the openness our tools help enable. Over the next three months, five prominent members of the CC community will share with the world why they support CC. If you’re interested in CC and issues of openness and access, this list is for you.
This year’s line-up consists of Eben Moglen, of the Software Freedom Law Center; Renata Avila, Creative Commons Guatemala Project Lead; Jonathan Coulton, singer and songwriter who licenses all his work under CC; Richard Bookman, Associate Professor of Molecular & Cellular Pharmacology at the Miller School of Medicine at the University of Miami; and Jimmy Wales, Founder of Wikipedia and member of CC’s Board of Directors.
We’re thrilled that the first letter in the series comes from Eben Moglen — Professor of Law and Legal History at Columbia University, and the Founder, Director-Counsel and Chairman of Software Freedom Law Center.
Free Software and Creative Commons
Having spent so much of my life working as a lawyer for the Free Software movement, I feel a special bond with the work of Creative Commons, and it is therefore a great privilege to write on behalf of CC.
In the twenty-first century, computer software is as necessary a tool of creation as pen, ink and paper; as chalk and clay and tubes of paint. Software is also as necessary to the distribution of creative works as copper wire, lighting and publicity. The goal of the Free Software movement was to make software for every purpose that everyone would be free to copy, modify and share. In pursuing that goal, the hackers who make free software were also enabling free culture. We have been together from the very beginning, technology and art.
The legal arrangements of the free software movement—Richard Stallman’s profound invention of the copyleft—are at the root of the “Share Alike” conception so important to the future of Creative Commons. Millions of writers, photographers, researchers, musicians, Wikipedians, hackers, teachers, and other humans work happily and freely in commons nourished by the principle of sharing. The beginning of the process was Larry Lessig’s wonderful insight into how to bring the principles of reasoning about sharing developed in the philosophy of Richard Stallman to the much wider scope of cultural production beyond software. Larry’s ideas ignited the Creative Commons beacon, to which creative people the world over have rallied, coming together to reshape copyright through voluntary action into a system for promoting sharing.
Principles are still the heart of both movements, and every compromise brings, as it should, controversy. I understand why, for those to whom the principles of freedom are always the first and only priority, Creative Commons has seemed a large and possibly too various collection of licensing models and approaches to the subject of free culture. For me, that diversity of outlook and intention has always been the particular glory of Creative Commons: that by definition it must be as large and indistinct in its outlines as the impossibly vast extent of human culture-making itself. And yet, despite all the differences of opinion, there is still an unshaken central commitment: awareness of the overarching importance to all cultural expression of the freedom to share.
All of us will have much to cooperate on in the near future. Everyone who inhabits the Web realizes, for example, that audio and video need to be more deeply embedded in the ordinary experience of building and using it. The immense outpouring of creativity that lies just ahead depends on freeing multimedia technology from shackles imposed on it by the patent system. Dozens of companies claim to “own” different parts of the technology for digital representation of audiovisual material on the Web. The thicket of licensing restrictions they place on their various “patented inventions” is largely responsible for all the incompatibilities; the plug-ins you have to download that only work sometimes on some material; and the inhibition of all sorts of wonderful, useful, beautiful and thought-provoking possibilities.
The Web has grown so magnificently because it was made of free software and free cultural activity—it enabled us to share, and our sharing made it the amazing starting-point that it is. But if we are going to achieve even just the next step in our new exploration of humanity that is Webspace, we’re going to have to make sure that freedom isn’t crushed by media companies with patents trying to prevent the future.
Working for the freedom of codecs and other multimedia software is just one example of the efforts we will all need to make together to ensure the freedom to share. Supporting Creative Commons isn’t just something I feel I ought to do; it’s something we all have to do. I hope you will join with me in supporting Creative Commons with your money, with your energy, and with your creative power. There’s nothing we can’t do if we share.Comments Off on Commoner Letter #1: Eben Moglen
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.1 Comment »