Open Content Community Celebrates Legal Victory

The open content community has been very upbeat recently – and it’s no surprise since they won what they say is a major legal victory.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

At times, the file-sharing revolution seems to merely overshadow the open content movement instead of pushing it out to the foreground. Instead of a debate on whether or not artists should either copyright their music and stick to an old business model or adopt a new one by taking a Creative Commons license and promoting music online instead, the debate gravitates towards whether it’s right or wrong to download the latest top 40 songs. For the more paranoid, it’s the only way left the major record labels are winning the copyright debates – by simply keeping music fans tied to what they release instead of exploring what non-major record labels or independent musicians have to offer.

So it may be no surprise that some may view this as a side-issue rather than a major breaking news story even when it first broke. It answers one of the major legal questions surrounding open licenses in the US – are licenses like Creative Commons really legally binding? A lower court may have suggested that it’s merely a contractual violation, but the United States Court of Appeals for the Federal Circuit overturned that ruling and said that yes, it is basically legally binding and yes, you can be taken to court for copyright infringement if you run afoul of the open license.

Groklaw originally reported on the case – known as the Jacobsen v. Katzer case. For those that find the language in the posting a little too legalese, Lawrence Lessig also blogged about the ruling and explained:

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.

It’s quite important indeed since the creator actually can exercise legal control if the license is being breached and not be almost legally treated like content in the public domain. So what about the case itself? The BBC also covered the story saying that the issue surrounds model trains.

The developer released some code that has to do with model trains. A company picked up the source code and started using it for commercial purposes. The case, of course, has since went to court.

While some people suggest that this latest development doesn’t really affect the status of how legally binding “artistic licenses” are, it’ll be hard to argue around the fact that an appeal affirmed the fact that the licenses are, indeed, enforceable by copyright laws. It seems that the technicality seems to be that it’s not actually a final ruling yet, but many are calling it as final probably because it’s about as good as it’s going to get from the copyright perspective of the license.

Artistic Licenses in Use

While the courts are using the term ‘Artistic Licenses’, some of the key principles to, say, the GPL/GNU and Creative Commons follows a very similar idea – that being that the artist is actually choosing what rights to reserve on a creation.

Most, if not, all major file-sharing clients that are not closed source use the GPL/GNU. Examples include eMule (including all the legal mods)

While open source developers use the GPL/GNU licenses as a license of choice for developing (though some use the BSD Licenses too), creators of music, movies and blogs tend to use the Creative Commons license. Usually, the “artistic license”, as termed by the US courts, is open to sharing like file-sharing – meaning it’s actually legal to file-share the content.

While it’s very easy to list off prominent open source projects (the biggest being Linux distributions), listing prominent Creative Commons content is a little more difficult (though exceptions include Elephants Dream, MiniNova’s Content Distribution and Flickr.

Creative Commons is best known for it’s flexibility. If one wants to allow remixing of their content, simply don’t include a ‘No Derivatives’ clause. If commercial distribution is your thing, add a commercial clause. Copyright specialist Molly Kleinman get a free license here and copy and paste the code onto their website.

While downloading may be here to stay and may be one of the internet’s worst kept secrets, there are times when people open to the concept end up being one of the internet’s best kept secrets.

Drew Wilson on Twitter: @icecube85 and Google+.

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