Perspectives on Technology and Internet Law
This past Thursday I gave a talk called “From Pages to Platforms” about the ways that Web 2.0 has affected Internet Law. Here it is in webcast form.
I recommend downloading (instead of allowing it to play in the browser) for a full-screen picture.
On this week’s Singularity Law Podcast, Michael and I briefly discussed some of the conflicts that exist between various copyleft licenses. Since then, I’ve had a few conversations with friends and attorneys (one at a job interview, in fact) in which I’ve detected some significant misunderstandings about the way these licenses relate to each other. Among many people–even some IP law practitioners–there’s a notion that “open source is open source.” This couldn’t be more wrong.
Copyleft licenses all have one big thing in common: they remove particular common copyright law restrictions on copies of works. For most works protected by U.S. copyrights, the owner of a copyright uses the law to prohibit others from reproducing, adapting, or distributing copies of his work. But copyleft licenses grant some or all of those rights to every person who receives a copy of the work. It’s wrong to think of this as the copyright owner surrendering one or more of his exclusive rights. The copyright owner is simply offering a license to use the work in one of a certain number of ways. Subsequent uses of the work are then “licensed uses” so long as they comply with the terms of the license selected by the copyright owner. But if someone uses the work without complying with the license, then his use is an infringing one.1
So, copyleft isn’t an absence of copyright. In fact, copyleft licenses rely on copyright law to enforce their provisions, which are usually intended to ensure that subsequent users of the work will always have the same rights to a work as did the generations before them.
The problem here is that these licenses are not created equal.
One common family of licenses that is used for Web content is the Creative Commons series. These are designed to encourage creativity among Web users by making content available with only “some rights reserved.” But there isn’t just one license called “Creative Commons;” even in this single “family” of licenses there are a number of versions available. For example, a copyright owner could decide to require attribution on each copy made, or require that the work and derivatives only be used for non-commercial purposes. The copyright owner could even prohibit modification of the work entirely. One provision allows licensors to require that licensees “share-alike,” meaning that copies and derivatives of the licensed work must be licensed under identical terms.2
Compare the Creative Commons licenses to the GNU General Public License (GPL) or the GNU Free Documentation License (GFDL) and you’ll find that there are stark differences that often make it impossible to create “mixed” works that incorporate content licensed under different terms. Michael Scott, my co-host on the Podcast, learned this the hard way when he sought to use material from the EFF’s website (licensed under a Creative Commons license that requires attribution and that all uses be noncommercial) on his IT Law Wiki, a reference project that makes all material available under the GFDL (which does not require attribution and permits commercial uses). This kind of “mixed” work couldn’t be done without asking the copyright owner of the original work to waive certain rights so that the material can be relicensed under new terms.
Similar incompatibilities exist between the GPL and the Apple Public Source License (APSL), the Mozilla Public License (MPL), and the OpenSSL license. Does this mean that a distribution of GNU Linux (GPL) can’t be bundled with a copy of the Firefox Web browser (MPL)? Of course not. But it does mean that a developer couldn’t use code from the Linux kernel’s TCP/IP stack to improve OpenSSL and then distribute copies of that improved software under the OpenSSL license.
Luckily, not all of these licenses are at war with each other. For reference materials and documentation, one terrific new development is section 11 of the new GFDL version 1.3, which permits most existing material that was previously licensed under the GFDL to be relicensed under the Creative Commons 3.0 Attribution-ShareAlike license. This means that a work that was published under a GFDL license prior to the start of this month can be used in many Creative Commons projects. Wikipedia, the driving force behind this revision, is licensed under the GFDL, which means that all content that was posted to that site prior to November 1 is now more compatible.3
On the software side of things, the Free Software Foundation has also made things simpler by making the GPL–by far the most popular open source license–compatible with a variety of other copyleft licenses. With other popular licenses like the two-clause FreeBSD license on the list, you might be surprised by just how usable GPL code really is.
I’m an open source advocate because copyleft licenses enable people to create tools that can change the world,4 while providing future generations with code and text that can be used to solve absolutely any problem for which it is suited, including new problems that the original author did not foresee. But I also recognize that tangled and competing licenses don’t provide any benefit to anyone. In the future I hope to see an organization like the Free Software Foundation take more of a leadership role in this area, bringing the community together so that creative people can make the most of their work.
Does a software developer waive his right to sue for copyright infringement by releasing his code under an open source license? This is the question to which the appellate court answered “no” today in Jacobsen v. Katzer.1
The plaintiff in this case is the manager of an open source software project whose code was improperly used by the defendant in a commercial software product that did not comply with the plaintiff’s license. But when the plaintiff brought an action for copyright infringement and moved for a preliminary injunction, the defendant argued that by releasing his code under an open source license the plaintiff waived his right to sue for copyright infringement and could now only sue for breach of contract under the license. The defendants relied on language from Sun Microsystems v. Microsoft Corp.2 that limited the rights of copyright owners to sue licensees for copyright infringement. The problem here is that the defendant — and the lower court — seems to have misunderstood an important element of how a license works.
When a copyright owner issues a nonexclusive license to a licensee, he grants the licensee the rights to use the work for some purpose. Here, the plaintiff wanted to ensure that his work remains available to the public in source code form so that anyone can edit and improve upon his work. That’s why he chose to release the software under an open source license rather than some other kind. In doing this, the plaintiff limited the scope of the license he granted the defendant as an end-user, and the defendant exceeded that scope. Legally, this means that by using the plaintiff’s code in a way that was repugnant to the open source license, the defendant’s use was not a licensed use at all.
Consequently, the central issue in this case was whether the relevant requirements in the license were conditions for the license to be valid or merely covenants to which the receiver of source code contractually agreed. A breach of a condition points toward copyright infringement liability because conditional language defines the scope of a contract. On the other hand, promissory language merely serves to create covenants that are actionable only in contract law.3 Luckily for the plaintiff, the appellate court seems to have had an easy time finding that the relevant language in the license was conditional in nature. Provisions such as “the intent of this document is to state the conditions under which [the program] may be copied” and that rights are granted “provided that” certain conditions are met weighed heavily in favor of the plaintiff in this case. This should serve as an important reminder to anyone drafting a license agreement who wants to preserve his client’s ability to sue for copyright infringement.
Practical matters aside, one of the best things about this case is that the court reaffirmed that “copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.” All too often people seem to confuse “open source” with “public domain” when in fact they are very different. In fact, open source relies heavily upon copyright law to exact its restrictions. The peculiar thing about open source is that, while traditional software uses copyright as an offensive tool to thwart pirates, the copyleft movement uses the same body of law as a defensive shield to ensure that its work remains freely available and modifiable.
This weblog is an informational resource only. It is not designed to offer legal advice.
