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.
As Lessig points out this is incredibly important, and in the long and short term, will make my job a lot easier.
Every time I get into a conversation with someone who is fairly legally minded regarding Creative Commons, they ask me, “But does it actually work?” meaning, does the law actually pay attention to these licenses that CC puts out? If someone breaks my CC license, will judges even care? Previously I’ve had to point to two international cases where CC licenses were upheld but demurely note that they haven’t, yet, been tested in the United States.
Now they have effectively been tested on a federal appeals level and have passed with flying colors. Aside from a Supreme Court decision, the free software and culture movement couldn’t have asked for anything better from the courts.
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. For example, the Massachusetts Institute of Technology (“MIT”) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.
It’s important to understand that the case isn’t testing a particular CC license per se, but testing a class of “open source” licenses which CC belongs to while underscoring the importance of licenses such as the six that CC stewards.
Anyway, congratulations to everyone at Stanford and JMRI for winning the case.