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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Joshua BA, Aug 14th, 2008 @ 1:17am

    What are you talking about?

    The two cases aren't even remotely similar.

    The promo CD case was about whether or not I could give something to someone with something written on it, and whatever is written magically comes true. Copyright really never even entered into it, it was a matter of who owned that physical CD. I don't recall there being a facet to that case where people were trying to distribute copies of a CD, they were simple distributing the original.

    This case is entirely about copying. They were given a license that said that they could make copies provided X happened. They did not fulfill X and so were not given permission to make copies and thus violated copyright. Their feeble argument that it was being given away for free and thus anyone can make copies has nothing to do with redistributing a copy you already have.

    It's not often that I think you are way off base but this is one of those times. I can not conceive of how you managed to entwine these two very, very different cases.

     

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  2.  
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    Mark Levitt, Aug 14th, 2008 @ 1:44am

    One involves making a copy, the other does not.

    "Perhaps the only difference is in what the licenses seek to restrict. "

    Perhaps, but the relevant difference is that, in the Universal music case, nothing was copied. The CD was resold, but that did not involve making a copy of the CD. Copyright law explicitly carves out an exception to the rights a copyright holder has regarding resale of a copy.

    In the Jacobsen case, the software was being copied. Thus, copyright law required the person making the copy to obtain a license.

     

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  3.  
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    Crosbie Fitch (profile), Aug 14th, 2008 @ 2:39am

    Re: What are you talking about?

    I agree Joshua. Copyright may be inconsistent, but Mike's not found much of a conflict here between a first sale issue and the making of unlicensed copies.

    Granted, the Promo CD thing wasn't necessarily clear cut, but it wasn't a license violation - though it could have been a contract violation (see my comment here: http://www.joegratz.net/archives/2008/06/11/first-sale-prevails-in-umg-v-augusto/ ).

    But as for licenses, unless the license is provided as an as yet unsigned contract (that the recipient may sign if they wish - at any time), if you do not observe the license you infringe copyright. No doubt the artistic license specifically informs the licensee that it is not a contract, nor can be made into one.

    It is important to distinguish between licenses that conditionally moderate copyright, and contracts (which aren't licenses, though they may appear similar).

    Even more important is to recognise how unethical copyright is in the first place.

     

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  4.  
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    eleete, Aug 14th, 2008 @ 2:47am

    Licenses and Stickers

    I'm probably missing something but.. Isn't one about the legal language in the overall license governing the work ? The other about a sticker on a case to modify a license or amend it ?
    example: If I have a three page license on some content that I am licensing to another. Can I include a sticker on the outside of the packaging that basically amends the license we agreed to?

    I see the point MM made, but I also see a distinction.

    Either way. Great Ruling and a fascinating read. Lessig, Perens and Moglen should be all giggly today. Especially RMS.

     

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  5.  
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    Anonymous Coward, Aug 14th, 2008 @ 2:53am

    "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."

    Have not read Artistic License but this is blatantly wrong for the Creative Commons license.

    The idea is you can have a copy of the software but you have to publish all improvements, modifications, updates and changes you make to the software. The payback to the original writers id 1) they get the software reviewed and 2) they get better functioning software which if you are a hardware vendor or just plain user is a very big monetary payback.

     

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  6.  
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    arima, Aug 14th, 2008 @ 3:11am

    I think the main difference between the cases is that with the open source license case, the open source license gives you more rights than copyright, if you want them. You don't have to take them, but then you have to deal with copyright law.

    The case of printing "not for resale" on a copyrighted work is trying to remove rights granted by copyright law. Why agree to something that gives you less rights?

    In both cases, no contract was signed between the two parties (I think). The copyrighted work was obtained by the user legally in both cases. The former redistributed in violation of copyright law (but if they complied with the Artistic license, it would be ok). The latter wanted to sell it, in compliance with copyright law (but in breach of a line of text printed on the CD).

    If I write "Do Not Ring My Doorbell" on a sign and stick it on my front door, would it be illegal to ring it?

     

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  7.  
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    Anonymous Cowherd, Aug 14th, 2008 @ 3:19am

    There is no conflict.

    The breach of the Artistic License was presumably along the lines of:

    Copyright holder: You can make copies so long as you do X.
    Someone: Makes a non-fair-use copy without doing X, and distributes it.
    -> Copyright infringement (not fair use & no permission to copy)

    The "not for resale" on the CDs was:

    Copyright holder: Don't resell
    Someone: Resells
    -> No copyright infringement (no copy made; original resold instead. First Sale. Arguable breach of contract.)


    Creative Commons non-commercial licenses:

    Copyright holder: You can make and distribute copies for non-commercial use.
    Someone: Makes and distributes a copy for commercial use; no fair use defense such as commentary or educational use.
    -> Copyright infringement (a copy was made and distributed without permission and it wasn't fair use)
    Another case is:

    Microsoft: Don't benchmark this code.
    Someone: becnchmarks the code
    -> No copyright infringement (no permission-requiring* copy made; arguable breach of contract.)

    * USC Title 17 Section 107(a)(1) creates an exception for normal installation and use of software, so that such private and non-distributed copies as one makes as a matter of course in the normal use of software do not require any permission from the copyright holder. The only possible infringement here is if the guy benchmarking the code pirated his copy instead of buying it at the store.


    As for the breaches of contract, USC Title 17 Section 107(a)(1) shows that there is no consideration in exchange for agreeing to typical clickwrap EULAs, as one does not need the copyright holder's permission to install the software (as separate from buying it; an agreement that had to be signed to get a disk with a copy or to download a copy might be binding, just not one that is NOT tied to obtaining a copy). So, the benchmarking isn't even a breach of contract by any SANE reading of the law.

    That same lack of consideration prevents the NO RESALE stickers from creating a contract, so no breach of contract reselling those disks.

    Likewise, there's no breach of contract selling copies of the software that had been released under the Artistic License, even though in that case there WAS copyright infringement.

    Copyright infringement and breach of contract are two separate things, each with its own criteria. The confusion stems from EULAs tending to include up to THREE separate things:
    * Advance permission from the copyright holder to copy and distribute under specified conditions;
    * A bunch of so-called contract terms supposedly governing use (not copying); and
    * Disclaimers of warranty and liability on the part of the vendor.

    The first gives conditions, additional to fair use and transient/install/personal copies, under which copying isn't copyright infringement.

    The second, separately, gives supposed terms and conditions of use, unconnected with copying and therefore unconnected with copyright (whatever may be said sometimes to the contrary), and generally without consideration (so many jurisdictions are likely to find THOSE terms to be null and void).

    The third, separately again, disclaims liability of any sort on the part of the provider of the software (or whatever) arising from your use of it.

    What? Blizzard v. BnetD? That decision was, quite simply, flat wrong. Reverse engineering is not copyright infringement, breaching the clickwrap EULA on the software on the disk you bought and installed is not breach of contract, and the reverse engineers never did enter into any contract arising from actually signing up for the online service part, so they certainly can't have breached THAT one. That judge was obviously on something -- probably dirty filthy industry money slipped to him under the table.

     

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  8.  
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    Anonymous Coward, Aug 14th, 2008 @ 5:38am

    For Those Of You Not Seeing The Correlation . . .

    Promo CD vs Free Software Thing

    Promo CD:
    * Given away for free
    * Recipient told what he can and can't do with it
    * Content created by someone other than Recipient whom holds copyright over the works
    * Physical good with digital content

    Free Software Thing:
    * Given away for free
    * Recipient told what he can and can't do with it
    * Content created by someone other than Recipient whom holds copyright over the works
    * digital content that could be put on physical media


    There ARE similarities in the situation. You seem to be letting your prejudices blind you to that though. Legally speaking, both goods are copyrighted and are protected the same with that.

    Where they get different is in the Artistic License vs No Resale Sticker:

    Artistic License:
    * Do what you want with this but don't share the modified code.

    No Resale Sticker:
    * Do what you want but don't share it in any way.

    The only way this doesn't contradict the UMG thing is if the fact the music tracks are unmodified means its still the original works.

    And of course, they will be unless the RIAA wants to claim ripping an MP3 makes it a derivative work in which case they can then stop suing people.


    So, while I agree with all of you that there is no immediate danger of those two being in conflict, the potential is there and we all know lawyers and courts leave common sense outside, I have to agree with Mike that it is worrisome.

     

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  9.  
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    Anonymous Coward, Aug 14th, 2008 @ 5:45am

    Re: For Those Of You Not Seeing The Correlation . . .

    Please ac get Mike's balls out of your mouth. Or is that you Mike? Wouldn't surprise me.

     

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  10.  
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    Steve R. (profile), Aug 14th, 2008 @ 6:04am

    Free Means No Copyright Right?????

    Mike makes a very chilling observation of the Kam Industries position: "since Jacobsen gives the software away for free willingly, there's no copyright claim at all." (emphasis added) The obvious conclusion is that this would allow the "theft" of work that is freely created!!!!

    I don't recall that copyright law, however onerous it currently is, requires that the creator "sell" the product in order to obtain the privilege of copyright. The defined purpose of copyright is to foster progress in the arts an science by giving the author a limited monopoly. Nothing says that one has to "sell" their work. In fact, I suppose, you could "sell" your work for $0.0.

    The New York Times has an article on this too. I like the Times statement: "The court ruling also bolsters the open-source movement by easing the concerns of large organizations about relying on free software from hobbyists and hackers who have freely contributed time and energy without pay. People who freely give time and effort for the common good should not have their work "stolen" by those seeking to make a profit off of it.

     

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  11.  
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    Crosbie Fitch (profile), Aug 14th, 2008 @ 6:14am

    Re: There is no conflict.

    +5: insightful, astute, intelligent.

    -1: anonymous. :-

     

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  12.  
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    Crosbie Fitch (profile), Aug 14th, 2008 @ 6:30am

    Re: Free Means No Copyright Right?????

    "People who freely give time and effort for the common good should not have their work "stolen" by those seeking to make a profit off of it."


    This is a common if just as misguided principle as unadulterated copyright.

    The 'Free as in speech, not as in beer' principle is about liberty, thus your aspiration when translated to a libertarian principle would be:

    People who have ethically removed the constraints of copyright and patent from their published work, should not have those constraints re-imposed by those seeking to profit from the suspension of the public's liberty.

    Incidentally, there's nothing wrong with profiting from anyone else's work. If I buy a chair or copy of GPL s/w from you that you've made, paint it green, or otherwise enhance it, and sell my version for twice the price to someone else, there's nothing unethical about this whatsoever (as long as no misrepresentation is involved) - even if you gave me the chair or copy for free.

     

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  13.  
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    Steve R. (profile), Aug 14th, 2008 @ 7:22am

    Re: Re: Free Means No Copyright Right?????

    Crosbie, You are correct that someone is entitled to take a "free" product and sell it for a profit. I should have been clear that I was referring to a situation where someone essentially privatizes something (like a freely developed computer program) in the public domain by asserting ownership and is therefore somehow entitled to all the so called "rights" of copyright.

     

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  14.  
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    Jon (profile), Aug 14th, 2008 @ 7:31am

    Re: There is no conflict.

    Wow. That is by far the most informative description of Copyright vs. Contracts I have ever seen. Plain English definition, examples, and elaboration.

    Kudos to the Anonymous Cowherd.

     

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  15.  
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    Paul, Aug 14th, 2008 @ 11:23am

    Isn't there also a difference...

    ...in that Universal Music just blindly sent out the CDs whereas individuals would have to seek out the code from Jacobsen. So, in this case, its like "I want that code, oh it has a license, but i'm still taking it." In UMG's, its "there's a CD in the mail that is now mine. Oh, it has a license, well, I was never given a chance to agree."

     

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  16.  
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    Anonymous Cowherd, Aug 14th, 2008 @ 12:38pm

    Eh

    What's wrong with being anonymous? (According to the Supreme Court: nothing.)

    An additional source of confusion is that EULAs are termed "licenses", but actually tend to be (purported) contracts plus some disclaimers. Only the ones that grant permission to copy under additional circumstances than copyright law would normally provide are true licenses.

    One example of a EULA with all three components would appear to be the AGPL. The usual GPL conditions for permission to copy are there (license part), and the usual disclaimers from the GPL are there (disclaimer part), plus a restriction on uses that don't involve distributing copies (if you make it accessible over the net for remote use, distribute the source; "contract" part). It will be interesting if the latter eventually proves to be unenforceable. (Any AGPL'd code that was distributed to the users, including client software or any code such as Java applets that the server software transmitted to clients, would remain subject to the standard GPL terms and conditions for copying and distribution, of course.)

     

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  17.  
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    Crosbie Fitch (profile), Aug 14th, 2008 @ 2:20pm

    Re: Eh

    There's nothing wrong with being anonymous.

    Similarly, there's nothing wrong in giving someone's words less weight because they choose not to risk their reputation or appear to lack the courage of their convictions.

    YMMV

    As to the AGPL. It's a crock. It's what happens when you pursue source code instead of liberty, even if you have to violate someone's privacy to get it. 'Freedom to violate another's privacy' is not an ethical freedom.

     

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  18.  
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    Anonymous Cowherd, Aug 14th, 2008 @ 11:34pm

    Re: Eh

    I have enough courage in my convictions to stick to my guns regarding my privacy and my right not to be spammed silly DESPITE all kinds of pressure everywhere to divulge irrelevant personal info and DESPITE your scorn. :-P

     

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  19.  
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    Synthfilker, Aug 15th, 2008 @ 7:38am

    #8 not quite accurate

    AC said in #8:

    >Artistic License:
    >* Do what you want with this but don't share the modified
    >code.

    That't not accurate in this case.

    Sharing the modified code IS permitted, under certain conditions... one of which is all copyright information is kept intact.

    In this case, Katzer _removed_ the copyright information from not just one, but well over 100 individual files, AND inserted his own, claiming copyright over _unchanged_ material. He then had the chutzpah to patent the software (without acknowledging 'prior art') and attempted to bill the major author of the program for each copy of the ORIGINAL software download. Yeah, he's slime.


    See:
    http://jmri.sourceforge.net/k/news.html#CAFCruling1
    for more information on the details of the violations (including links to specific examples from both programs)
    and
    http://jmri.sourceforge.net/k/updates.html#next
    for a history of the case

     

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  20.  
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    Bob Wyman, Aug 15th, 2008 @ 11:52am

    CC grants rights while

    You wrote: "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."

    Wrong! All Creative Commons licenses grant rights that are otherwise restricted under copyright. However, a "Not for Sale" tag creates a restriction which is not imposed by US copyright law. Thus, CC works completely within the realm of rights which are the subject of copyright law while the "Not for Sale" tag operates outside copyright law.

    People often get confused about this. For instance, folk often think that a "no commercial use" Creative Commons license actually prohibits commercial use -- but they are wrong... What a "no commercial use" CC license says is: "no exception to existing copyright restrictions is granted for commercial use." Thus, given a CC/NC license, only copyright law governs commercial use -- and typically prevents it.

    Creative Commons licenses apply only in cases where the uses of the content meet the requirements stated in the license. In any case where such requirements are not met, copyright continues to apply unchanged. Creative Commons licenses explicitly cannot be used to create restrictions on use greater than those applied by copyright law.

    If you understand Creative Commons licenses as instruments that can only be used to selectively grant rights otherwise restricted, the judges ruling is not surprising and uncontroversial. All he's saying is that since the copyright holder offered no grant relaxing copyright restrictions in the case of commercial use, the restrictions imposed by copyright law continue to apply.

    bob wyman

     

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  21.  
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    Mike (profile), Aug 15th, 2008 @ 2:13pm

    Re: CC grants rights while

    Wrong! All Creative Commons licenses grant rights that are otherwise restricted under copyright. However, a "Not for Sale" tag creates a restriction which is not imposed by US copyright law. Thus, CC works completely within the realm of rights which are the subject of copyright law while the "Not for Sale" tag operates outside copyright law.

    Hi Bob... Thanks for pointing this out, but it's worth mentioning that this is pretty much exactly what I wrote towards the end of the post...

     

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  22.  
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    Spudd86, Apr 28th, 2009 @ 5:56pm

    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).

    Precisely

    Read the FSF's and the OSI's literature on what a copywrite licsence is, and why contract law does not apply to the GPL, or any Open Source licsence, and CANNOT. A Contract must be agreed to by both parties, a licsence need not be, but you can only copy the work under fair use or you must obtain a licsence, hence if you want to copy or create a derivitive work of GPL software you must comply with it's terms, nothing else grants you the right to do so.

     

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