August 15, 2008

Federal Circuit Confirms Key Free Software Licensing Practice

Filed under: code, copyright, events, law, open — wseltzer @ 2:08 pm

The Federal Circuit held this week in Jacobsen v. Katzer, that Java Model Railroad Interface author Robert Jacobsen’s release of software under the Artistic License gave him the right to sue for copyright infringement those who distributed modified JMRI software without obeying the conditions of its license. The decision confirms an important cornerstone to many of the open source and free software licenses: Taking the work without accepting its license’s conditions is an infringement of copyright, subject to all of copyright’s enforcement options.

Users of free and open source licenses, or Creative Commons licenses for non-software works, offer their works to the world on a non-exclusive basis on a set of conditions. In the Artistic License, those conditions are:

provided that [the user] insert a prominent notice in each changed file stating how and when [the user] changed that file, and provided that [the user] do at least ONE of the following:

a) place [the user's] modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as, or by allowing the Copyright Holder to include [the user's] modifications in the Standard Version of the Package.

b) use the modified Package only within [the user's] corporation or organization.

c) rename any non-standard executables so the names do not conflict with the standard executables, which must also be provided, and provide a separate manual page for each nonstandard executable that clearly documents how it differs from the Standard Version, or

d) make other distribution arrangements with the Copyright Holder.

If you accept the conditions of the public license and follow them, as by making source code available and giving clear notification of changes from the original, your reuse of the original copyrighted work is licensed, no further action required. If you can’t work with the conditions of the public license, you’re always free to contact the copyright holder to negotiate alternate terms. What Jacobsen v. Katzer confirms, however, is that you’re not free to disregard the license conditions and yet claim your redistribution of the copyrighted work is non-infringing.

License v. Contract: Katzer, the taker who didn’t follow license terms, had argued that JMRI could sue only for breach of contract. The court explicitly disagreed. This is significant for licensors because copyright infringement is both simpler to prove: show unlicensed copying and substantial similarity to the original, rather than acceptance of a contract and damages from breach of its terms; and offers benefits such as statutory damages (no proof of loss required) and presumptions of “irreparable harm” that let the licensor get a preliminary injunction against continued infringing distribution.

Economics: The decision recognizes the economic advantages to choosing non-monetary forms of “compensation” for use of a publicly licensed work: “Copyright licenses are designed to support the right to exclude… The choice to exact consideration in the form of compliance with the open source requirements of disclosure and explanation of changes, rather than as a dollar-denominated fee, is entitled to no less legal recognition.” “The attribution and modification transparency requirements directly serve to drive traffic to the open source incubation page and to inform downstream users of the project, which is a significant economic goal of the copyright holder that the law will enforce.” The law does not mandate these terms by default, but if a copyright holder chooses to apply them to make his works more readily available on non-dollar terms, the law will enforce them.

Anti-FUD: Finally, the decision should help clear some of the “fear, uncertainty, and doubt” that opponents of free software try to sow around free and open source licenses. They may rarely have been tested in court because parties prefer to negotiate better solutions between themselves, but when tested, the licenses do hold up, to enforce the terms their users intend.

See also NYT, Lessig, WSJ.

August 12, 2008

Olympics, YouTube, Protest, Copyright

Filed under: Chilling Effects, DMCA, censorship, copyright — wseltzer @ 6:13 pm

Students for a Free Tibet posted video of a Free Tibet protest to YouTube. YouTube pulled it, in response to a copyright complaint from the International Olympic Committee. From the
copy posted to vimeo (and thence re-posted to YouTube, it appears), it’s hard to see a colorable copyright infringement claim. Sure, the image of the Olympics’ (trademarked) interlocking rings and (copyrightable) mascot showed up, but those uses would be fair and non-infringing.

We see once again that the DMCA’s unbalanced takedown scheme encourages overzealous claiming of copyright, as an easy route to removal of unflattering content. With those already inclined toward enforcement zealotry, that pushes them far overboard.

Update 8/15: It appears that YouTube reinstated the video after the IOC indicated it did not really intend to pursue a copyright claim. Still sad that this level of assurance isn’t required before claims are filed in the first place.

August 7, 2008

Follow the Lead-Users, Not with Cease-and-Desists

Filed under: Chilling Effects, code, copyright, innovation, trademark — wseltzer @ 2:25 pm

Hasbro should have settled with the Scrabulous developers, not sued

While Hasbro was scrapping with Mattel over rights to develop an official online Scrabble (the two split geographic ownership of the Scrabble trademark), the Agarwalla brothers were building one. Their Facebook app, launched a year ago, won a loyal following among Scrabble fans who appreciated a chance to play the word game online, with friends in their social networks. Scrabulous listened to user suggestions, enhancing the online version to the point where it could boast 1.3 million monthly users and a 4.2 star rating, (as compared to 235k users giving Hasbro’s recently launched “beta” 1.2 stars).

Hasbro, however, responded to Scrabulous with a lawsuit, filed in the Southern District of New York, claiming copyright and trademark infringement, trademark dilution, and unfair competition. In response, the Agarwalla brothers closed the Scrabulous app to users whose IP addresses were located in the U.S. and Canada. (Since the Scrabulous website remains accessible from North American IPs, it’s possible the Facebook app was restricted under pressure from and on Facebook.) The EA Scrabble beta has been criticized as more visual flash than substance, without many of the playability features users had appreciated in Scrabulous.

Whether or not it has the legal right, I think Hasbro’s lawyers gave the company bad business advice. As I’ve said before, I believe Hasbro has no copyright claim, but might have (easily avoidable) trademark claims based on the “Scrabulous” name. If trademark’s value is goodwill, Hasbro’s federal complaint lost far more in goodwill than it preserved in control.

Hasbro may think it can ride this one out, that even 1.3 million Facebookers are only a small fraction of those it might interest in an “official” version later. Numerically, of course, that may be correct, but the raw numbers would miss the identities of those users.

I just came out of a three-day workshop on user innovation, where much research was presented on the value of “lead users” in innovation (see Democratizing Innovation for more). Lead users, such as Tim O’Reilly’s “alpha geeks,” push products and services to their limits, tweaking and often improving when their needs aren’t met by the stock components. Smart companies learn to listen to these users — while some of their demands will be unique corner cases, others are early indicators of where the masses will be soon — and where profits are to be made by a company that can supply needs and lead demand.

The Net makes lead-user innovation easier than ever, lowering the costs of communications channels to users sharing their enthusiasm and jointly developing ideas. They often freely reveal ideas and improvements that the savvy company can use in its own product development.

Some companies, O’Reilly’s among them, recognize the value of lead-user innovation and foster these user communities with conferences, forums, or support. When they take ideas and develop them further, to a mass audience now caught up to the curve, they do it so everyone feels fairly treated: the lead users get access to better products the company can produce at larger scale — and a platform for further innovation. Maybe the company even gets a chance to steer the “hackers” toward developments it prefers.

Others, however, see any hacking as “unauthorized,” to be shut down with cease-and-desist threats. They send nasty letters that may shut down the activity but also alienate the users who might show them where to go next. This is what Hasbro has done with its lawsuit against the Agarwalla brothers behind Scrabulous.

The Scrabulous users included Scrabble’s lead-user enthusiasts. Many fans posted to the application’s forum or “wall” (10,953 posts), giving the app developers (and anyone listening) both praise and suggestions for further enhancement. These lead users both told and showed where they wanted the game to go next. The Agarwalla brothers themselves were lead user innovators par excellence, spotting a need and filling it.

Hasbro’s lawsuit response to this outpouring of enthusiasm around Scrabble play quashed much of that lead-user drive. The posts on the EA “Scrabble beta” forum mix criticism of the company with complaints of bugs. Hasbro has neither the quality application nor the community around “official” Scrabble as the Agarwalla brothers had for Scrabulous.

There should have been enough value in Scrabulous to share — Hasbro does have US and Canada trademark rights to Scrabble, which imparted some value to the “Scrabulous” app, and Hasbro’s authorization could have allowed Scrabulous to build even further on the recognized brand. The Agarwallas have shown both programming talent and the ability to engage other enthusiasts. Together, they could create more value than either alone, and likely more than enough extra value to make it worth both their whiles to cooperate. As is, some of that value will migrate over to Wordscraper (Scrabulous’s revised form, which is fun but suffers from lack of interoperability with Scrabble), and some will head to authorized Scrabble, but some will dissipate entirely.

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