The importance of not losing

Each time free copyright licenses such as the GPL or the suit of Creative Commons licenses go to court and win we confirm that the legal theory behind the licenses is correct. In a strange way the courts take the position that they agree with the practice of law and licensing being established in practice. Naturally they would not agree if the practices were totally outlandish so in actual fact what we have is the establishment of a school of thought – a consensus. Or what Ludwik Fleck called a thought collective. In the thought collective an idea is proposed and eventually gains momentum until it becomes an established norm.

This is what happens every time a free license is tested by the legal system.

This is because despite their theory and their use the free copyright license remains a different school of thought – a modification of the past thought collective of the established copyright regime. The problem is that often established regimes are seen as laws of nature. Permanent and everlasting. We know that copyright has not always been and does not always have to be – and yet many modifications are viewed with intense suspicion.

There is a snappy quote attributed to Henry Kissinger on the differences between conventional forces and guerrilla forces:  the guerrilla wins if he does not lose. The conventional army loses if it does not win.

So free copyright licenses win in court but in reality they do not lose. We know when we have established them as a conventional norm not only when they keep winning in court but when they fact that they lose a day in court they are still seen as viable, valuable and an ordinary part of the copyright ecosystem.

Free licenses upheld

Lessig reports:

So for non-lawgeeks, this won’t seem important. But trust me, this is huge.

I am very proud to report today that the Court of Appeals for the Federal Circuit (THE “IP” court in the US) has upheld a free (ok, they call them “open source”) copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it. Congratulations especially to Chris Ridder and Anthony Falzone at the Center.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you’re simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.