Does Court Ruling Over Artistic License Conflict With Other Copyright Rulings?

from the getting-into-the-weeds dept

Both Slashdot and Larry Lessig are cheering about a CAFC (Court of Appeals for the Federal Circuit) ruling concerning the scope of various "free" licenses (pdf) like the Artistic License or Creative Commons' licenses. It's an interesting ruling, overturning a lower court ruling. The details are actually connected to a case we wrote about a few years ago, though that was focused on the patent questions related to this case, rather than copyright.

The case involves a guy who created some "free" software that allows users to program model railroad train systems. A company used some of his software in their own commercial offering, and, in doing so, violated the terms of the Artistic License he was using. No one seems to dispute that the Artistic License was violated. The question before the court is what that means -- and whether the end result means that the creator of the original software has a claim on the breach of the license, or if he can sue for copyright infringement. The guy who created the software, Jacobsen, claims that if you violate the Artistic License, then it reverts to copyright infringement. The makers of the commercial software, Katzer/Kamind, counter that there is no copyright claim here, as they merely broke the terms of the Artistic License, not copyright itself. And, in fact, since Jacobsen gives the software away for free willingly, there's no copyright claim at all.

The court sided with Jacobsen, and Slashdot and Lessig are celebrating this (perhaps accurately) as a huge win for alternative licenses such as the Artistic License and Creative Commons Licenses -- basically allowing them to revert to copyright claims if the terms of the license are violated. For supporters of such licenses, it's certainly a good decision. When I first read the decision, though, I was concerned that it seemed to contradict the recent ruling against Universal Music which stated that simply stamping "not for resale" on a CD doesn't give Universal additional rights above and beyond copyright. That ruling seemed like a good decision, too -- but in some ways it could be seen to conflict with this new decision. Though there may also be a way to read them that suggests the decisions agree.

After all, Creative Commons seems to basically do the same thing that stamping "not for resale" does on CDs: it creates a separate license on top of copyright, and then tries to use copyright's defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren't enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.

In the Universal case, the court found that the "not for resale" language wasn't enforceable because there was no "exchange" that resulted in the "license" (also known as "consideration" -- which is usually required for US contracts to be binding): "UMG gives the Promo CDs to music industry insiders, never to be returned. ... Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession." The same is true of Jacobsen's software, as well. The software is given, never to be returned, and the license doesn't require the end user to provide Jacobsen with any benefit in return.

Perhaps the only difference is in what the licenses seek to restrict. That is, in the Universal case, the proposed restrictions are greater than what copyright seeks to restrict (i.e., not allowing resale). In the Jacobsen case, the reserved rights are less than what copyright allows (i.e., you are allowed to copy, but under these conditions). So despite the different situations, in either case, the judgments revert to copyright law to establish the issue: i.e., in the Universal case, it's really an extension of copyright law, whereas in the Jacobsen case, it's carving a hole in copyright law. So, if either license is "broken" you just fall back to copyright law: in the UMG case, you revert and realize copyright law isn't broken by reselling. In Jacobsen, you revert and find that copyright law is broken by the use. However, it would be interesting if some copyright scholars could weigh in on this to make sure that these rulings don't contradict.

If this interpretation of the rulings is correct, then this is definitely a big victory for those using licenses that carve out exceptions to copyright law, but still want to hold copyright law over those who abuse the licenses.

Filed Under: artistic license, copyright, creative commons, free licenses