Larry Lessig posts wonderful news
In his own words:
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.
Short version is that if you violate the terms of a CC license, the license goes away, and you’re a copyright infringer. This is what we’ve always argued, and it’s great to see the courts agree. Contracts like the CC suite are kind of like uncompiled code before they get into court. This decision means the code in fact compiles.
Seems odd that it took so long to happen, but it’s still good to have the decision “in the bank”.
I still think data should be Public Domain, but good MTAs are a step in the right direction, and my hope is that this decision will reassure researchers that they do have solid legal protection under the terms of a Science Commons MTA.
Actually, this only affects copyrighted matter under a Creative Commons license. It doesn’t affect our position on data being in the public domain – in fact, though this decision is great for OA journals that use CC license, it actually proves our point about attribution stacking being a terrible problem for data providers that mistakenly apply CC licenses to their data. This would empower one provider of data in a sea of other data to obtain a preliminary injunction to stop all use of that sea of data until attribution issues are worked out, for example. If anything the strengthening of the licenses places even greater import on the need to use the CC0 system or the Public Domain Dedication and License for data, not CC licenses.
See our protocol and thinh’s piece on the protocol and the Open Data Commons FAQ for more reading.
Also, the opinion does not apply to the SC MTA system. As this is an intellectual property court, its decision does not apply to transfers of non-intellectual property. The SC MTAs simply govern what is called “title” – this is property in the sense of an apple. We sign a contract, I give you the apple. That’s a material transfer as opposed to an IPR license…
I agree this is all ridiculously complex. But it is illuminating for all non lawyers who play at being lawyer, including me. This decision pivoted on the phrase “provided that” buried deep in the artistic license. That phrase above all else gave the court direction as to the decision, and it’s why the words chosen in drafting are so essential. If the words “provided that” had simply been replaced with “if” there’s a good chance the decision flips the other way.
What does this mean for cases of alleged copyright infringement where there are no economic damages?
Apologies – I think my question was answered in the decision:
“Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right. The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition. Indeed, because a calculation of damages is inherently speculative, these types of license restrictions might well be rendered meaningless absent the ability to enforce through injunctive relief.”