Posted on August 18, 2008 in CC, IP, licensing, open source by Brian RoweComments Off

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)

Posted on November 11, 2007 in Giving, OLPC, open source by Brian RoweComments Off

Starting tomorrow, November 12, One Laptop Per Child will be offering a Give 1 Get 1 Program for a brief window of time in North America. For $399, you will be purchasing two XO laptops—one that will be sent to empower a child to learn in a developing nation, and one that will be sent to your child at home.

If you’re interested in Give 1 Get 1, sign up at One laptop Giving

Posted on February 8, 2007 in microsoft, nonprofits, nptech, open source by Sarah DaviesComments Off

As TechSoup just announced that they will be offering Vista and Word 2007 to nonprofits for about $20 a license, I feel this is an appropriate time to talk about the moral implications of purchasing these products.

There are many reasons to discourage nonprofits from accepting donated software from Microsoft. Most nonprofits exist because they are trying to make the world a better place. Most nonprofit employees apply their own morals to their purchases. We buy recycled paper. We buy fair trade coffee. Software has moral implications behind it as well. Microsoft has refused to allow others to customize or edit their software. They have refused to share their knowledge with the rest of the community. They use monopolistic practices to discourage innovation. They routinely hire contract employees and require them to take periods of time off unpaid to avoid paying them benefits.

For these reasons, I strongly encourage you to examine Open Source options. Free software is not called free simply because it doesn’t cost anything. It is free because anyone can use it, build on it, customize it, change it, and share it. Thousands of volunteer developers have spent their time building these tools. The software is better and easier to use because it is built by software users for software users, not by contract employees without benefits designing for profit.

One of the tools available is Open Office at Another is Ubuntu at Many people in the tech community help nonprofits out with these tools on a daily basis in tech forums. If you feel especially uncomfortable with them, and want someone to hold your hand all the way through, consider Red Hat at; they charge for the service of implementing and customizing open source software built by volunteers. I’ve spoken to some open source developers, and they’ve told me that they do it because they want to help the world, and if you go to their forums they will answer your questions (and they won’t charge you $30/hour like Microsoft). Moreover, these tools are updated more often than proprietary software, and the updates are free of charge.

Doesn’t that sound better?