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Shownotes for The Singularity Law Podcast: Episode 7 for November 17, 2008

Our Panel for Today:

• Prof. Michael Scott of The Singularity Law Blog
• Josh Kagan of The Josh Kagan Blog

President-Elect Obama Talks Technology Policy

• Barack Obama’s Technology Proposals (From Campaign)
• Digg Dialogg with Al Gore
• Michael’s blog: We Need a Technology Policy for the 21st Century
• Josh’s blog: On Technology Policy, Let’s Be More Specific
• CNET writes about Obama’s search for a national CTO
• Also from CNET: Obama’s Mixed Signals on Transparency

Net Neutrality

• Michael’s blog: Network Neutrality: To Regulate or Not to Regulate
• Wired: Net Neutrality Advocates In Charge of Obama Team Review of FCC

From Pages to Platforms: The Law of Web 2.0 and Beyond

• Webcast of Josh’s Talk

Practice Pointer: Conditional vs. Promissory Language in Licenses

• Jacobsen v. Katzer (Fed. Cir. Aug. 13, 2008)
• Josh’s blog: Win For Open Source in Jacobsen v. Katzer

Turbulence in the International Arena

• Torrentfreak: Record Labels to Sue Vuze, Limewire and SourceForge
• Intellectual Property Law Blog: Why US Web Site Owners Should Watch Foreign Suits (PDF)

Napster Judge Proposes Radical Copyright Reform

• Wired writes about Judge Patel’s proposals

Final Thoughts: Craigslist and Hookers

• Silicon Alley Insider: Craigslist: From Now On, All Hookers Require A Valid Credit Card

We apologize for the fluctuations in sound quality throughout this episode. We realized about 15 minutes into recording that our microphone had a bad connection.

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Common Ground

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 Incompatibilities

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.

The Compatibilities

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.

1. Jacobsen v. Katzer.
2. Hard-core copyleft advocates argue that only this version of the license is truly “copyleft.”
3. The November 1st date was a tactical decision designed to prevent people from gaming the system by adding materials to Wikipedia just to be able to use them under a Creative Commons license afterward.
4. No hyperbole here. Where would we be without Apache?

Click the play button below to listen, or click here to subscribe to us on iTunes!

Click here to download this week’s show.

Here are the show notes for this week’s episode:

Shownotes for The Singularity Law Podcast: Episode 6 for November 4, 2008

Our Panel for Today:

• Prof. Michael Scott of The Singularity Law Blog
• Josh Kagan of The Josh Kagan Blog

DMCA’s 10th Anniversary: Where Do We Go From Here?

• EFF: “Unintended Consequences: Ten Years Under the DMCA”

The Google Book Search Settlement

• Michael Scott: “Google Stares Down Book Industry: Publishers Blink, Google Book Search Wins”
• EFF: “Google Book Search Settlement: A Reader’s Guide”
• EFF: “Google Reaches Settlement With Authors and Publishers Over Google Book Search”
• Google Watch (eWeek): “Google Gets Great Deal in Book Search Settlement”
• Authors Guild: “$125 Million Settlement in Authors Guild v. Google”
• Text of Settlement Agreement
• Class Notice

Regulating Violent Video Games

• Josh Kagan: “Violent Video Games Go (Back) to Court”

Final Thoughts

• Southwestern’s Summer Abroad Program on International Information Technology Law in London
• Lawrence Lessig: “Enormously Important News from the Free Software Foundation”