For the London Free Press – September 15, 2008
A recent U.S. Federal Appeals Court ruling has found that copyright laws apply to free software licences.
The Court in Jacobson versus Katzer held that copyright holders “who engage in open-source licensing have the right to control the modification and distribution of copyrighted material.”
Advocates of open-source software are ecstatic about the ruling. Before this decision, the ability of a copyright holder to offer their work free to the public and still enforce an “open-source” copyright licence and maintain control over the distribution and modification of their work was unclear.
Larry Lessig, a Stanford University law professor and developer of Creative Commons, has called the decision “a very important victory” that provides “important clarity and certainty by a critically important U.S. court.”
Creative Commons is a non-profit organization providing copyright licences that let individuals make their work available to the public while continuing to restrict certain rights. Creative Commons acted as a friend of the court in this case.
Free in this context means the users are free to modify and distribute the software to others. Several versions and types of open-source licences are available. Typically, creators of open-source software simply select a publicly available open-source licence to govern use of their code.
So why is this decision attracting so much attention?
Traditional software licences are closed-source or proprietary licences. They are closed-source because the human-readable programming, or source code, is hidden from users. This means users can’t modify the software.
In contrast, open-source licences make source code available, allowing users to revise and redistribute the code provided they meet the terms of the software licence. Some terms typically included in open-source licences require users to: track changes to the software, including programming instructions; credit the developer of the original software; and reveal the scope of the licence granted by the original owner.
This collaborative model of software development has been widely used in the artistic and scientific community, and has allowed companies such as Wikipedia to rapidly expand and improve their software at minimal cost.
Until this decision was released, some thought open-source licences could be enforced only under contract law. But this ruling held that the licence in question also was enforceable under copyright law, opening the door to more grounds and ways to enforce such licences. That the software was given away did not detract from the copyright claim.
This case has impact beyond software licences. Written content and music are often provided under a Creative Commons licence that lets users copy and use it under set conditions. Those conditions might include attributing the work to the author, not creating additional works based on it, and not using it for commercial purposes. Many blogs, for example, are published under Creative Commons licences.
Larry Lessig, a Stanford University law professor and developer of Creative Commons, has called the decision “a very important victory” that provides “important clarity and certainty by a critically important U.S. court.”