The other side of the balance.

We are often told that copyright law is supposed to be a balance, offering, on the one hand, the financial incentive to creators that goes with monopoly rights and, on the other hand, sufficient exceptions to those monopoly rights to allow new creators to build on previous work. Without the latter half of this balance, creativity would effectively grind to a halt, and the incentive side would be useless. But most of the time, Congress and the courts seem to be serving the needs of those who want to profit from works already created at the expense of those who are trying to innovate and create new works. So it is especially pleasant to report on a couple of recent court decisions that can be seen as efforts to redress that imbalance and give some support to essential users’ rights.

First, there was the ruling in Jacobsen V. Katzer that essentially upheld the enforceability of an open source software license. Open source licenses are contracts (and that was part of the issue) that waive copyright, telling a downstream user that they are free to use the software in ways that would otherwise require permission, as long as they abide by certain conditions. In the Jacobsen case , such a license was challenged on several grounds — that it did not form an enforceable contract, that the terms of the license were not real conditions but merely “covenants” without legal teeth, and that the license was an attempt to enforce so-called “moral rights” which are largely not recognized in the US. The Federal Circuit Court of Appeals rejected these challenges and sent the case back to the District Court to be decided as a contract and copyright infringement case.

What this essentially means is that an open source license — and this likely includes the Creative Commons licenses often used in higher education as well as the more technical software license directly at issue — forms a contract between copyright holder and user that allows the user to use the work according to the terms of the license and lets the rights holder sue for infringement if those terms are breached. This is how these licenses are supposed to work, and it is nice to see a circuit court affirm their proper functionality. This ruling will make it easier for academics authors and other creators to share scholarly work without relinquishing total control.

One interesting part of this argument was the assertion about moral rights. It is quite true that the US protects moral rights, including the right of attribution, only for a small group of visual artists.  But that fact does not show why an attribution license is invalid, it shows why such a license better serves the needs of many creators, especially in academia, then copyright law alone does.  With an open access license an author can leverage their ownership of copyright to enforce the right of attribution when the law alone would not do so.  And attribution, of course, is usually the most important reward an academic author gets from her work. That is why this recent decision upholding these types of licenses is so important well beyond the sphere of software development.

The other important development was a DMCA case that decided that, before sending a “takedown notice” alleging that some particular web posting infringes copyright, the rights holder must consider whether fair use would authorize the particular posting.  This decision tracks the wording of the DMCA very closely, noting that the law permits takedown notices when the posting is not authorized by the rights holder or by law. Fair use, as the court correctly held, is a form of authorization by law (note my previous post here that noted that this has not been the case in previous DMCA practice). Therefore, a rights holder should not send a takedown notice in a case where a good faith consideration of fair use makes clear that the posting in question is not infringing.

The primary value of this second decision will be to limit the ability of rights holders to use the DMCA system to frighten people and to “chill” legitimate fair uses of commercial works.  The particular case involved one of those transformative uses that are so highly favored in the fair use analysis — a 29 second homemade video of a baby dancing to the sounds of a Prince song.  It should be obvious that such a video, even when available on YouTube, is not a commercial substitute for purchasing the song itself on CD or as an MP3.  So the takedown notice sent to YouTube over this parent-posted video seemed abusive, designed more to intimidate than to protect legitimate commercial interests.  Thus the court allowed the parents’ case against the rights-holder for misrepresentation under the DMCA to go forward, ruling that consideration of fair use is a prerequisite to the proper use of the DMCA takedown notice.  This, too, is a victory for user’s rights and, even more important, for free speech in the digital world.

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