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 ftp.uu.net, 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.

Berkman@10 was wonderfully Twittered, Flickrd, and blogged, with technology enhancing the in-person connections.

Next stop, CFP.

“Slow. Expensive. Unreliable. Unverifiable.” Those don’t sound like the specs you’d put in a procurement document for a system undergirding electoral democracy, but they’re the words Jason Kitcat used repeatedly to describe what Open Rights Group found when it observed the use of e-voting in England and Scotland’s pilot trial of the technologies in May 2007.

Speaking at the
release of ORG’s election report, Kitcat described failures that ORG’s volunteer observers saw or had reported to them. In Rushmoor, a candidate reported that the online ballot mis-identified his opponent’s party affiliation. In Breckland, a manual recount of non-electronic ballots initially counted by computer turned up more than 50% more votes than the e-count. At least Breckland had a non-electronic ballot to fall back upon. In fully electronic systems being adopted in other districts, a “recount” can only repeat the same tally of bits, with no certain way to detect improper recording or tampering.

ORG concludes that, given the problems observed and the questions remaining unanswered, it cannot express confidence in the results declared in areas observed. Given these findings, ORG remains opposed to the introduction of e-voting and e-counting in the United Kingdom.

Unfortunately, but unsurprisingly, ORG’s findings mirror those of EFF and others regarding United States deployment of e-voting. In a process led by vendors, veiled in proprietary trade secrecy, with inadequate attention to the security and verification required for confidence in democratic elections, e-voting and non-transparent e-counting do not serve the American or British citizenry. ORG is taking great steps to expose the flaws and push for more accountable voting.

I hope there’s political reward for refusing to prey on misguided fears, because Michael Bloomberg certainly seems more sensible than his predecessor in that regard. He’s earned points with me, at least, with this response to alleged JFK terror threats.

“There are a lot of threats to you in the world,” Mr. Bloomberg said, listing a few, like heart attacks and lightning strikes. “You can’t sit there and worry about everything. Get a life.”

Via NYT

At the World Wide Web Conference, Building a Semantic Web in Which Our Data Can Participate panel. A few notes, loosely joined.

Open Street Maps generates and annotates street maps from open sources of data. In the UK and Canada, unlike in the U.S., street map data is protected by Crown Copyright, so folks who want to annotate maps generally can’t. Can we compare the range of map-based products available between US and UK/Canada to see whether openness or closure is better for this data, for the public? It would cost $400,000CAN to collect all the maps of Canada from official sources, an audience member says, and even then you wouldn’t be allowed to post and annotate them. In the US, $30 buys them all on a CD, in the public domain.

Freebase aims to create a meta-database of free information that can connect multiple sources of information. Jamie Taylor positions free information in Geoffrey Moore’s terminology of core versus context. If data is not your core competency, then you should open it up, let the community contribute to your costs of maintaining it — and helping you to find new uses for it. Along the business lifecycle, opening (or modularising) your data can allow you to focus on the core where you have comparative advantage, and force weaker competitors to move there too.

With collaborative databases, questions of the trustworthiness of the data come to the fore. Metadata becomes even more important, particularly metadata about origin, as well as validation by corroboration among multiple datasets. Freebase uses internal foreign keys to trace the source of datasets.

And thinking about the validity of contributed data can make us think about better ways to validate internally sourced data too. Can we trace its origins, compare it to others’ measurements? Can we build in the metadata fields that allow us to rate the trustworthiness of elements and collaborate to focus on the weak spots? Defensive programming is good for everyone’s data, even our own.

Peter Murray, talking about open access to scientific data, gives the example of PubChem. Before PubChem, each chemical supplier claimed copyright and proprietary interests in its catalogues. Now, if you’re not in PubChem, you might as well not exist, so they’ve opened up, opening access to chemical information as well as expanding their markets.

Just found a PDF of presentations.

Please vote! As you make your way to the polls today, Dan Gillmor posts a helpful guide to polling-place photography laws, from Stanford’s cyberlaw clinic, so citizens with cameras can help document the state of the process.

If you don’t know where your polling place is, the League of Women Voters’ Vote411.org gives an interactive lookup, along with information about state-by-state ID requirements and election law. Demand a real (not provisional) ballot if you’re entitled to one.

Finally, if you do encounter problems voting, call the Election Protection centers, 1-866-OUR-VOTE, where volunteers will be tracking and responding to problems, including those of electronic voting machines. I’ll be listening in NY.

While hoping there will be few, VotersUnite and EFF are also tracking e-voting irregularities.

I’m sure I’m not the only person to see Bomb Or Not? Training For Government Agents! and wonder how long it will be before they get a cease-and-desist threat.

My guess, it won’t be HotOrNot, who can recognize a good parody when they see one, but the Department of Homeland Security, which tends to see humor as a security risk.

DHS has already raised trademark claims against the Federation of American Scientists for ReallyReady.org, a critique-by-improvement of DHS’s anemic Ready.gov. They could even crib from this href="http://www.chillingeffects.org/notice.cgi?NoticeID=578">White House complaint about use of the Presidential Seal.

We need a bit of Franklin D. Roosevelt here: The only thing we have to fear is fear itself. Or as Bruce Schneier puts it, “The surest defense against terrorism is to refuse to be terrorized.”

Unfortunately, I don’t have confidence that the filtering techniques being used on warrantless interceptions and datamined communications will be any more accurate than the algorithm that placed this AT&T ad above a story on “Telecoms let NSA spy on calls.” The story does feature AT&T prominently, just not in a way that has me rushing to buy service from them…

If you care about politics or media, you owe yourself a viewing of Good Night, And Good Luck, the new film on Edward R. Murrow and his fight to expose Joseph McCarthy. The film, shot in black and white with McCarthy playing himself via old news footage, powerfully captures the horror of McCarthy’s witch hunt. Equally important, it reminds us of journalism’s power — and its obligation — to educate and lead.

Unfortunately, that is a reminder we urgently need. The closing speech of Murrow’s McCarthy broadcast, quoted verbatim in the film, is timeless:

[T]he line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin has stepped over it repeatedly. His primary achievement has been in confusing the public mind, as between internal and the external threats of Communism. We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. We will not be driven by fear into an age of unreason, if we dig deep in our history and our doctrine, and remember that we are not descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.

This is no time for men who oppose Senator McCarthy’s methods to keep silent, or for those who approve. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of a republic to abdicate his responsibilities. As a nation we have come into our full inheritance at a tender age. We proclaim ourselves, as indeed we are, the defenders of freedom, wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.

The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear; he merely exploited it — and rather successfully. Cassius was right. “The fault, dear Brutus, is not in our stars, but in ourselves.”

Good night, and good luck.

Participate’s “Report It Now” works to translate those ideals into action by modern citizen journalists. Xeni Jardin collects more good resources at BoingBoing, including the entire Murrow address that bookends the film.

It’s clearly time for someone to update this 1981 cartoon from Paul Conrad:
On which item have the courts ruled that manufacturers and retailers be responsible for having supplied the equipment?

The NYT reports:

WASHINGTON, Oct. 20 - The House of Representatives delivered the gun lobby a cherished victory today, overwhelmingly approving a bill to protect gun manufacturers and dealers from lawsuits by crime victims.

only weeks after this from CNet News

Twenty members of Congress are calling for the reinstatement of the “broadcast flag,” a controversial form of copy prevention technology for digital TV broadcasts. In a letter Thursday, the politicians called for rapid approval of a federal law adopting the broadcast flag, which would outlaw over-the-air digital TV receivers and computer tuner cards that don’t follow strict anticopying standards.

All only months after the Grokster court ruled makers of filesharing software could be sued for “inducing” copyright infringement.