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Big legal win for free licenses
From: David Farber <dave () farber net>
Date: Wed, 13 Aug 2008 19:23:16 -0400



Begin forwarded message:

From: Joichi Ito <jito () neoteny com>
Date: August 13, 2008 7:07:33 PM EDT
To: David Farber <dave () farber net>
Subject: Big legal win for free licenses

http://joi.ito.com/weblog/2008/08/13/lessighuge-and.html

Big legal win for free licenses ยป

   From Lessig

   "huge and important news: free licenses upheld

So for non-lawgeeks, this won't seem important. But trust me, this is huge.

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."

My comments:

The brief that was filed is here.

When we talk to organizations that want to use Creative Commons licenses, we inevitably end up in the legal department. In many cases, these legal departments are, understandably, conservative and they throw a lot of reasons why "it can't work" into the discussion. They often create an impenetrable wall of legal mumbo jumbo that often causes the management or the teams inside of these organizations to give up trying to use Creative Commons licenses.

This notion of whether CC licenses are just contracts which require things like click-wrapped acknowledgment from the user or not hinge on this distinction that has been made clear with this ruling. Clarity on this point should make it significantly easier to clear conservative legal departments and will hopefully make adoption that much easier.

Big thanks to the Stanford team and everyone involved. This is a happy day.
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