Lessig

huge and important news: free licenses upheld

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.

The brief that was filed is here.

When we talk to organizations that want to use Creative Commons licenses, we inevitably end up in the legal department. In many cases, these legal departments are, understandably, conservative and they throw a lot of reasons why "it can't work" into the discussion. They often create an impenetrable wall of legal mumbo jumbo that often causes the management or the teams inside of these organizations to give up trying to use Creative Commons licenses.

This notion of whether CC licenses are just contracts which require things like click-wrapped acknowledgment from the user or not hinge on this distinction that has been made clear with this ruling. Clarity on this point should make it significantly easier to clear conservative legal departments and will hopefully make adoption that much easier.

Big thanks to the Stanford team and everyone involved. This is a happy day.

8 Comments

Very good news! and super glad to hear it. This helps me immensely in my business arguments at work and talking to govt officials and such.

Grats! Thanks for both the link to the decision and the short discussion on why it is helpful to you. To me, the result seemed sort of obvious, but the background on the difficulty CC has been having with some lawyers is enlightening.

Might it also be the case that courts in other countries will see the US ruling and look favourably if similar cases are brought in their jurisdictions?

Great news and congratulations. This is interesting as I had a conversation about the legal status of open source licenses over lunch yesterday. Is there a list of court cases/challenges anywhere? I believe that the GPL has been challenged but settled out of court on several occasions, but not sure that there is a list of "incidents" that are of interest. (Obviously, IANAL but am interested in the "L")

- cce

A deeper explanation would benefit me and I guess some other readers. Reading comments on Lessig's post and reading your summary here, I don't think I really get it. Would it be possible to have a clarification under the form of a 101 maybe with a concrete example? :) That would be really cool.

I agree. Please, Joi.

I was hoping that a legal type would chime in, but my understanding (and I am not a lawyer) is that contract law requires that all of the parties that create and then use the content need to have a contract with each other. There are arguments about what constitutes a contract, but basically, it means that the parties involved have a meeting of the minds and agree to abide by the terms.

In the case of open source or commons-based projects that span years and thousands of people, it gets exceedingly complicated.

In the case of a license that is based on copyright, you don't need this agreement between the parties. Unlike a contract where a breach of the terms would constitute a disagreement between the participants, breaching the terms of a copyright license means you are breaking the law.

I think this simplifies the whole thing and also gets rid of a variety of things we do to try to make "using this constitutes agreement to a contract"... for instance, a lot of software licenses say, "if you break this seal, you agree too the following terms" or "clicking on this constitutes agreement to...". With copyright as the hook, this issue of whether just having a CC license on a page or whether we need to somehow force someone to acknowledge being party to an agreement becomes less relevant.

Having said that, I am not a lawyer and while this may sound like legal advice, it's not. Hopefully someone more legally minded can chime in if I've got it wrong.

Jamie Boyle, CC's Chairman was on NPR doing a very good job explaining it. I suggest listening if you're interested in learning more.

http://wamu.org/programs/kn/08/08/19.php#22244
http://wamu.org/audio/kn/08/08/k1080819-22244.ram

Many thanks Joi for taking the time. It slowly takes shape in my mind.
I will listen the audio.

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