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.

A group of us filed formal comments with the FCC arguing that “free, filtered broadband,” as the FCC proposed to mandate in the AWS-3 spectrum auction, is not “Internet.” Comments here, in WT Docket 07-195.

Commenters strongly support the deployment and ubiquitous availability of broadband services across the country. We are concerned, however, that the Commisson’s proposed rule requiring content-filtering on broadband offered over the AWS-3 band destroys the “Internet” character of the service. The Internet is distinguished by its flexibility as a platform on which new services can be built with no pre-arrangement. While requiring filtering of known protocols in itself raises serious First Amendment conflicts, forcing the blocking of unknown or unrecognized traffic hampers both speech and innovation. We therefore urge the Commission to drop the filtering conditions from its Final Rule.

Thanks to all who helped with the Comments!

Right in the middle of my New York Times today (yes, I still read it, and on paper) are two full-page color ads for Nokia’s N95, with the taglines “Comes with unlimited potential. We believe the smartest devices should keep getting smarter. That’s why we’ve left the Nokia Nseries open to enhancement, experimentation, and evolution. Open to anything.” url nseries.com/open (warning, flash-heavy)

I love it. Just the stance toward user innovation I’d like to see more companies adopt. They’ve borrowed a few pages right out of von Hippel’s Democratizing Innovation, mashed up with Benkler’s Wealth of Networks and Zittrain’s Generativity.

This contrasts, of course, with the advertised nature of the iPhone, locked to Apple’s apps and carrier. But we’ve also seen that within weeks of the iPhone’s launch, hackers have opened it, unlocked it, and built scores of apps.

So I wonder, how does the level of independent development on the N95, and Symbian, which powers it, compare with that on the iPhone? The N95 retails for $749 in the U.S., limiting the community likely to embrace it. Apple’s price drop brought the iPhone to $400; would it have engendered the same creativity if left at $600? Does Apple’s “cool” factor do more to bring in the hackers than Nokia’s; are touch gestures more of a draw than built-in GPS?

Or am I just seeing one side of the U.S.- Europe cellphone divide, and do Symbian developers prevail abroad where they’ve had more access to unlocked phones and fewer lock-subsidies to compete with?

The Crimson has been reporting on the Harvard Coop’s silly claims of “intellectual property” against those who come to the bookstore to compare prices. It’s escalated all the way to calling the cops, who wisely refused to throw students out of the store.

A terrific clinical student at the Berkman Center helped us to write an op-ed on the limits of copyright, which the Crimson ran today:

We’re not sure what “intellectual property” right the Coop has in mind, but it’s none that we recognize. Nor is it one that promotes the progress of science and useful arts, as copyright is intended to do. While intellectual property may have become the fashionable threat of late, even in the wake of the Recording Industry Association of America’s mass litigation campaign the catch-phrase—and the law—has its limits.

Since the Coop’s managers don’t seem to have read the law books on their shelves, we’d like to offer them a little Copyright 101.

Copyright law protects original works of authorship—the texts and images in those books on the shelves—but not facts or ideas. So while copyright law might prohibit students from dropping by with scanners, it doesn’t stop them from noting what books are on the shelf and how much they cost.

CrimsonReading.org does students a real service by helping them to compare prices efficiently. Harvard should support them in their information-sharing efforts, rather than endorsing the Coop’s attempts to cut off access to uncopyrightable facts.

As if there weren’t enough problems with lawyers sending out improper cease-and-desists, Wired News reports that a Nevada man has pleaded guilty to impersonating a lawyer to extort domain registrants to turn over their domain names.

A Nevada man pleaded guilty Thursday to his plotting to steal domain names from their legitimate owners by impersonating a California intellectual property lawyer and send threatening letters to domain name owners in hopes of convincing them to turn over the domains to him.

Las Vegas resident David Scali registered the email address trademarkinfringement@netzero.net in 2006 and then, pretending to be a real Califonia lawyer (whose intials are K.Y.C.), threatened domain name owners with $100,000 trademark infringement suits, unless they transferred the domains within 48 hours.

I wonder if his C&Ds were any further afield than some we see from real lawyers.

Author Denise McCune posts a great account of the workings and failings of the DMCA’s notice-and-takedown procedures.

As Cory Doctorow has also reported on BoingBoing, the VP of the Science Fiction and Fantasy Writers of America sent an error-filled takedown complaint to text-sharing site Scribd, causing removal of many non-infringing postings including reading lists suggesting great science fiction, and Cory’s own novels, which he’s CC-licensed for free redistribution.

The DMCA safe-harbor is most charitably described as an intricate dance for all parties involved: the copyright claimant, the ISP, and the poster. When the dancers are synchronized, its notice, takedown, and counternotice steps give each party a prescribed sequence by which to notify the others of claims and invite their responses. That’s why the DMCA requires the claimant to identify the copyrighted works, specify alleged infringements with “information reasonably sufficient to permit the service provider to locate the material,” and state good faith belief that the uses are unauthorized. When a copyright claimant misses one of those key elements, he starts stepping on toes.

The service provider isn’t obliged to respond to deficient notices, but if a notice contains all the right formal elements — even if it’s factually wrong about copyright ownership or copying — the service provider must choose between taking down the material or losing its DMCA safe-harbor and facing potential lawsuits. Posters who believe their material is non-infringing or fairly posted can counter-notify and even file their own lawsuits for misuse of copyright claims, under sec. 512(f).

I share McCune’s hope that the brouhaha will help the SFWA to help authors express all their copyright interests, including that of free sharing:

I hope the SFWA’s lawyers are sitting down with Andrew Burt and explaining how the DMCA actually works, so that actual, legitimate violations of copyright (on Scribd and on other sites) can get dealt with swiftly and promptly and the people who have asked SFWA to be their copyright representative can get infringing uses of their material removed. I’m also glad to see that the SFWA ePiracy Committee has suspended operations until they can investigate further — and, hopefully, come up with an effective process and procedure that benefits both fair and/or transformative use while also protecting the rights of copyright holders to have control over where and how their material is posted — whether that control is a more traditional “nobody gets to use this, period” or a Creative Commons-style authorization of transformative work.

The Houston Chronicle reports that celebrity gossip site PerezHilton.com has battled ISP takedown over claimed copyright infringement. The problem is, site-owner Mario Lavanderia is already disputing those claims in federal court, where a judge refused to grant an injunction. Instead, as the judicial process properly works, Lavanderia must be proven a likely infringer before his speech is silenced.

The DMCA, however, offers copyright claimants an easy route around the niceties of judicial process — make it too much of a nuisance for an ISP to deal with an accused infringer as a client, and get his site removed. And this underscores the precarious nature of our reliance on private infrastructure. Even though the DMCA insulates ISPs from liability once they’ve received counter-notification, copyright claimants can still shower them with complaints, and ISPs are still free to bow to risk aversion and refuse to do business with challenging customers — including those who challenge powerful copyright interests.

Los Angeles photo agency X17 Inc. sued Lavandeira in federal court last year, asking for $7.6 million in damages. The suit claimed Hilton used 51 photographs without permission, payment or credit, including images of a pregnant Katie Holmes, Kevin Federline pumping gas and Britney Spears.

A federal judge denied the company’s motion for an injunction against the site, although the lawsuit continues, as does another filed on behalf of several other photo agencies. A lawsuit filed by Universal Studios claiming the site posted a stolen photo of Jennifer Aniston from the film “The Break-Up” is also pending.

X17 co-owner Brandy Navarre said the company has sent more than a dozen notices to the Australian Web hosting company Crucial Paradigm in the past two weeks, demanding that copies of copyrighted photos on the Perezhilton.com site be removed.

“They quickly realized it wasn’t worth taking on this liability just to host this one client who was a repeat infringer,” Navarre said Thursday.

Tuesday, Crucial Paradigm sent a strongly worded letter to the company that represents Lavandeira, saying it had received numerous complaints of copyright violations and warning that one more complaint would result in the site being taken offline.

“Please note that with any other provider this would have been done a long time ago, and moving your site to another provider will not solve this issue,” the letter read. “Continued abuse is leaving us more liable each day, which we can’t afford.”

PerezHilton.com appears to have found a new host in short order, but other critics with fewer resources often find themselves chilled well short of any judicial decision on the merits of their defenses.

According to observers and civil society NGO participants, the WIPO Standing Committee on Copyright and Related Rights will not recommend a Diplomatic Conference on the proposed WIPO Broadcasting Treaty. In non-WIPO-ese, that means broadcasters won’t get the unjustified grant of copyright-plus rights they’ve been asking for. Instead, they’ll still have copyright protection for their programs, while the public will get its fair use without an extra layer of exclusion.

From Intellectual Property Watch » WIPO Broadcasting Treaty Talks Break Down:

World Intellectual Property Organization negotiations for a treaty on rights for broadcasters broke down at the eleventh hour, according to participating government officials. A high-level final treaty negotiation scheduled for November will not take place, they said.

The SCCR, which does its work through “non-papers” and meetings in Geneva, has been pushing for a broadcasting treaty for nearly a decade. It was nearing its conclusion, sending the draft on to a Diplomatic Conference to be adopted as an international treaty, when delegates apparently finally recognized they could not reach consensus. The latest draft would have added DRM-protection, anti-circumvention, and new exclusive rights to broadcasts, threatening innovations like TiVo and SlingBox. While the United States was at most stages willing to sell out its innovators, even pushing at times for grant of new “webcasting” exclusive rights, Brazil, India, and the Africa Group took the lead in rejecting a new treaty if it lacked public rights and exceptions to balance those granted to broadcasters.

EFF and KEI, among others, have been keeping this process under scrutiny for a long time. Amazing how similar the debates look to what I first helped live-blog in 2004.

Update: Not dead yet? Jamie Love reports the “surreal” draft conclusions of the Chair, that a Diplomatic Conference should be held in 2008.

It’s not just the pros who want control. Over the weekend the NCAA ejected a Louisville Courier-Journal reporter from a college baseball championship for live-blogging the game. Brian Bennet reports that he had been posting updates throughout the game on his Courier-Journal blog, until, at the bottom of the fifth inning, “an NCAA representative came to my seat on press row and asked for my credential and asked me to leave. I complied.”
Apparently, according to a memo NCAA circulated, the college athletic association believes that live-blogging interferes with its revenue streams from broadcast licenses:

The College World Series Media Coordination staff along with the NCAA Broadcasting group needs to remind all media coordinators that any statistical or other live representation of the Super Regional games falls under the exclusive broadcasting and Internet rights granted to the NCAA’s official rights holders and therefore is not allowed by any other entity. Since blogs are considered a live representation of the game, any blog that has action photos or game reports, including play-by-play, scores or any in-game updates, is specifically prohibited. In essence, no blog entries are permitted between the first pitch and the final out of each game.

Now there are legal and policy questions here: First off, this wasn’t a copyright or misappropriation claim. If the reporter had watched or listened to a broadcast and blogged details from there, the NCAA would have no claim against him (see NBA v. Motorola, where the basketball association lost just such a claim). It can’t claim ownership of the facts, even if it currently makes money from selling privileged access to the facts.

Instead, the NCAA was clamping down on the data through a claimed right to control physical access to the game, at least to the press box.
Was the NCAA within its legal rights to revoke a press credential? Probably. The NCAA has no obligation to issue press credentials, and apart from anti-discrimination law, can condition them on whatever arbitrary terms it likes. But David Price points out another twist: The University of Louisville, where the game was played, is a public institution, subject to First Amendment limitations on the speech-limiting rules it can impose. Can it ban speech or allow others to do so on its space based on claimed disruption to a business deal? Does it depend whether a baseball stadium is a “public forum”? (Under current law, it’s probably not.)

Finally, there’s the policy. Even if banning bloggers is legally permissible, it;s silly. Silly of the NCAA to think it can keep up this kind of control, silly of licensees to see blogs as a substitute to what they’re licensing, and silly of schools to endorse and accept such policies for their student athletes’ games. Exclusivity of facts is unlikely to last long in practice, as the Courier-Journal reports: “The Oregonian newspaper in Portland decided to work around the rules by blogging Oregon State’s game against Michigan on Sunday off a radio broadcast in its newsroom, said its executive editor, Peter Bhatia. He said the newspaper heard no objections from the NCAA and planned to do the same yesterday.”

My OII colleague Tobias Escher reports on a German decision on website operator liability for user-posted content. A professor unhappy with his reviews on Meinprof.de, such as comments calling him a “psychopath,” sued. The site had removed the comments on his complaint, but he nonetheless demanded that the site pay a fine and be enjoined from allowing similar comments to be re-posted. The appeals court sensibly rejected that injunction. According to Tobias:

The court has decided that a general “cease and desist” for unacceptable comments is against the law. As a professor one has to face public criticism that cannot be prohibited ex ante.

…
In general this is a positive outcome for web sites that leverage the wisdom of the crowds as it offers some protection for the often not-for-profit operators of these sites. However, this does not justify defamatory comments on those sites and the court has emphasized the operators’ duty to remove those entries as soon as they are recognized. Last but not least, the subject under public scrutiny does matters as professors might well be made to face personal criticism in their role as public figures while teachers and nurses might have to be treated differently.

German law lacks a CDA Section 230, which immunizes U.S. service providers from defamation liability for user-contributed comments. So RateMyTeachers.com can ignore claims of defamation, leaving U.S. teachers to fight back with words, leaving their own comments or questioning the reliability of the site.

German sites, by contrast, can be held liable for their users’ false assertions. If such liability were automatic, triggered immediately upon the posting of a defamatory comment, sites that permitted users to post content might as well paint lawsuit targets on their homepages: anyone could claim to have been defamed there; anyone unhappy with postings could get a heckler’s veto against not just individual posts but the site itself. Sensibly, then, the MeinProf.de court limits the potentially unbounded liability in a manner similar to the U.S. caution against prior restraints of speech. The site can’t be held liable until it has been given an opportunity to defend or remove the post; those who want to make libel claims against hosts should start by giving the host notice.

My U.S.-centric view is still that posters and their subjects should battle over online defamation between themselves, leaving their online hosts out of the picture. As we all depend on intermediaries to speak online, our speech gets less free with each new burden and risk-sensitivity we put on the intermediaries. Those who feel victimized have access to the same speech technologies to respond — putting them on a more level playing field than arises when one calls in the law and an intermediary is chilled. In the German context and legal tradition, however, this decision seems to get close.