If I apply some wacky new type of license to my creative work, is it going to hold up in court if a conflict comes down to that?
According to some participants, a key US court yesterday made a decision in favor of free, open intellectual property licenses like Creative Commons, though the details of the decision are complicated.
We're not big fans of intellectual property law, but some innovations in the field are facilitating a wave of tech and cultural creativity around the world. Authoritative validation of these legal innovations is important in that context. We may not feel great about copyright, but we do want people to feel comfortable using new types of legal licenses. This week's legal decision may be very helpful in that.
The Court of Appeals for the Federal Circuit yesterday ruled (see court document below) that a license called Artistic License, similar to Creative Commons, was violated in a dust up between model engineer software developers. One developer created software that could be used to program the tiny trains, put it under Artistic License, and then alleged that another developer took parts of his work, incorporated it into commercial software and didn't give any credit to the original author.
At this point there appears to be no question that this did happen, the only question was whether it matters - whether the Artistic License is legally valid. The court appears to have ruled that it is.
As super-lawyer Larry Lessig puts it: "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."
While the water 'aint so bad for most copyright infringers, many believe that infringement is of far more consequence when it's done against "one of us," someone who has embraced an alternative, looser version of copyright.
Lack of Clarity
Put a panel of judges in a room and ask them if the sky is blue and you'll likely get an answer like "we decline to disagree with some points brought up by previous parties that have engaged with the question." So it's hard to know for sure how solid this ruling really is right now. Lessig, and others who can hardly be called disinterested, say it's a huge win.
Others, like a particularly well spoken commenter on BoingBoing and Mike Masnick, probably the most no-b.s. blogger in tech, point out that there are some wrinkles in the situation that deserve recognition before we start celebrating.
Why This is Important
Standard copyright in the US and increasingly around the world is by default a requirement that you get explicit permission to use a creative work. This slows things down a lot. Next generation intellectual property frameworks, like Creative Commons, allow creators to communicate their terms for reuse ahead of time, so that subsequent creation can build on their work immediately.
Many creators, though, need assurances that their conditions will be respected before they are willing to open their work to any limited reuse without explicit permission.
In 2006, an Amsterdam court ruled in favor of former MTV star and now Venture Capital stockpiling podcast maven Adam Curry in a case alleging that a tabloid used some of his Creative Commons licensed photos from Flickr without his permission. While that ruling was interesting and important, this week's related judgment in a key US court about software licensing is potentially of much greater signifigance.
If this decision ends up being as clear as Lessig and friends contend, and Larry Lessig is a pretty stand up guy, then the case of the model engineer software should provide solid ground for even more creators to feel safe offering their work under licenses that facilitate limited but more frictionless reuse and sharing.
New technologies require new legal frameworks and in an era so marked by regressive actions around intellectual property in film and music, it's refreshing to see some good news for once.
Want a good way to celebrate? Today could be a good day to visit the privacy and permissions tab in your Flickr account and change the default setting for new photos uploaded to a Creative Commons one. Come on in, the water's fine.