Sunday, August 17, 2008

BPN 1192 Open is not free

A Dutch judge already confirmed the working of creative commons licenses for content, but now an American judge stated in a strong ruling (PDF) that open source does mean free copyright use. The ruling upheld the Artistic License in a copyright dispute between the developers.

Robert Jacobsen had developed a Java system for model trains and made this available online under an Artistic License, which entails that other programmers can use the software in their software, but have to recognise the original programmer. The company Kamind used portions of program to develop a competing and commercial product, but did not comply with the Artistic License in a number of respects, including attribution, copyright notices, tracked changes or availability of the underlying standard version. Jacobsen asked the court for a ruling, but the lower court did not rule in his favour, saying that the Artistic License merely imposed 'contractual' promises, and that a violation did not constitute copyright infringement. But The US Court of Appeals for the Federal Circuit, which usually rules intellectual property cases, agreed that the Artistic License has consequences as to the copyright and can not be used without any recognition of the developer.

The ruling has great consequences for developers of open software, which is usually offered for free. It is the first time that an Artistic License has been recognised by the court. For programmers using open source software it means that they always will have to recognise the developer, while for companies it means that they can no use the software without for commercial purposes without the knowledge of the original developer.

Professor Larry Lessig, a founding member of Creative Commons, said in his own blog: "For non-lawgeeks, this won't seem important but this is huge. In non-technical terms, the Court has held that free licences set conditions on the use of copyrighted work. When you violate the condition, the licence disappears, meaning you're simply a copyright infringer. This is a very important victory." The ruling has implications for the Creative Commons licence which offers ways for work to go into the public domain and still be protected. These licenses are widely used by academic organisations like MIT for distributing coursework, scientific groups, artists, movie makers and Wikipedia among others. Mark Radcliffe of the Open Source Initiative said: "This opinion demonstrates a strong understanding of a basic economic principle of the internet; that even though money doesn't change hands, attribution is a valuable economic right in the information economy."

Blog Posting Number: 1192

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