Wednesday, August 13, 2008

CAFC speaks to "open source" issues in Jacobsen

In 2006, IPBiz discussed the Jacobsen model train case. On August 13, the CAFC vacated and remanded the ND Ca decision. At stake, was the right of a copyright holder to enforce an "open source" license; also of interest were the jurisdictional matters which allowed the CAFC to speak to copyright, normally not the province of the CAFC. Jacobsen, the copyright holder, won on the copyright issues (meaning open source restrictions are to be treated as conditions of (not covenants to) the copyright license) but now must establish that he meets the requirements to have an injunction against the copyright infringers. Simply put, the "open source" guy won.

The heart of this case relates to "open source"; the CAFC wrote:

Public licenses, often referred to as "open source" licenses, are used by artists,
authors, educators, software developers, and scientists who wish to create collaborative projects and to dedicate certain works to the public. Several types of public licenses have been designed to provide creators of copyrighted materials a means to protect and control their copyrights. Creative Commons, one of the amici curiae, provides free copyright licenses to allow parties to dedicate their works to the public or to license certain uses of their works while keeping some rights reserved.

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.

[For example, the GNU General Public License, which is used for the Linux
operating system, prohibits downstream users from charging for a license to the software. See Wallace v. IBM Corp., 467 F.3d 1104, 1105-06 (7th Cir. 2006). ]

The heart of the argument on appeal concerns whether the terms of the Artistic License are conditions of, or merely covenants to, the copyright license. Generally, a copyright owner who grants a nonexclusive license to use his copyrighted material waives his right to sue the licensee for copyright infringement@ and can sue only for breach of contract. Sun Microsystems, Inc., v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999);
Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998).

**The punchline-->

Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material. As the Second Circuit explained in Gilliam v. ABC, 538 F.2d 14, 21 (2d Cir. 1976), the "unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any
other use of a work that exceeded the license granted by the proprietor of the copyright." Copyright licenses are designed to support the right to exclude; money damages alone do not support or enforce that right.


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