During my last week at CC in San Francisco, an amazing opinion can out of the United States Court of Appeals which held that “Open Source” or public license licensors are entitled to copyright infringement relief. This case brought incredible excitement at the CC offices. One of the big questions we get is what happens when someone violates a license? Is the artist entitled to contract damages or copyright infringement damages and injunctive relief? This is a huge issue. If an artist can only get contract damages the licenses are nearly useless for more than signaling.
Under contract law proving harm on a freely distributed work is difficult at best and getting an injunction is very very difficult. The licenses were always written with the intent that the user could gain copyright remedies, but until it was tested in court many old guard companies have been a little afraid of using the licenses. 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. This court ruling creates a very useful and powerful precedence at the federal level (although I am not entirely sure over which courts it is persuasive and which it is controlling, this will be the subject of another post).
Beyond the basic holding of the court, this is a great ruling for two other reasons: the court that ruled and the mention of Creative Commons directly. The Court of Appeals for the Federal Circuit (CAFC) is the leading intellectual property court in the United States. The Federal Circuit is the only judicial circuit that has its jurisdiction based entirely on subject matter rather than geographical location. It hears all appeals from any of the United States district courts where the original action included a complaint arising under the patent laws. In this case one of the claims of the plaintiff was a patent claim giving the court jurisdiction to hear this appeal; normally the court does not hear copyright issues.
Second this was a case involving the Artistic License an open source software license that is very similar to the Creative Commons licenses. Even though a CC license was not directly at issue the court of appeals did mention both Creative Commons and the OpenCourseWare project that licenses all 1800 MIT courses under CC licenses noting them as important to the public and as advancing arts and science at an pace only imaginable a few years ago. Attribution was also given a special mention as important from an economic perspective. The opinion understood some of the basic important parts on an online economy often free distribution is equated with giving up all rights, this opinion looked deeper and found the importance of reputation and credit online.
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.”
This ruling was made possible through the hard work of the public license community who came together to write a friend of the court brief on the appeal. The cosponsors the brief were Linux Foundation, The Open Source Initiative, Software Freedom Law Center, the Perl Foundation and Wikimedia Foundation. The principle attorneys on the amici brief were Anthony T. Falzone and Christopher K. Ridder of Stanford’s Center for Internet & Society.
Official CC Press Release
Wendy Seltzer Comments: Federal Circuit Confirms Key Free Software Licensing Practice
Mark Radcliffe Comments:Major Victory for Open Source in Jacobsen Decision
Read the full opinion: Jacobsen v. Katzer.(PDF)
Read the full brief.(PDF)