Rob Barton

If a tree falls in a forest and no one is around to sue, what is its legal standing?
Open source is supposed to be a way of simplifying licensing issues and sharing your software/music/video/other content with the masses — freely and magnanimously. Problem is, what happens when something open source is found to be a (possible) violation of some else’s rights? What happens to its derivatives? Do they just pack up shop and find something else, or are they legally responsible for their actions?

There have been a few examples in which the Free Software Foundation's GPL has been involved in court cases (but none so far with the GFDL). Legal precedents will come out of such cases. A lot more will become known with respect to the licenses and the way they're to be used by the development of case law. The precedent on an issue is the collective body of judicially announced principles that a court should consider when interpreting the law.  The more court precedent the GFDL or Creative Commons have in their favor the more credibility they will have. As the case law history builds they will become a cornerstone others can depend upon.

The first known court decision involving a Creative Commons license was handed down on March 9, 2006 by the District Court of Amsterdam. The case confirmed that the conditions of a Creative Commons license automatically apply to the content licensed under it.

A Texas family is now suing Virgin Mobile for using a photo of their daughter, Alison Chang, in an ad campaign – the catch is, it was released by the photographer on Flickr under the Creative Commons Attribution license, and that’s where Virgin Mobile got the photo from. The problem is, the girl featured in the photo had no idea her photo was being used – or that it was released under the Creative Commons license. As the case currently stands, the Changs are suing consumers of open source works and not the original party responsible for the release of the work as an open source material without a proper media consent form. Do end-users of open source material have a legal obligation to ensure that the material they use was cleanly and wholly legally released as open source in the first place? Just how far does one have to go?

Should it actually be ruled that Virgin Mobile is guilty as charged, an online panic in the open source community may ensue. At the moment, most big open source projects perform a cursory check on any code/content submitted for possible legal violations (and, let’s be honest, for plausible deniability more than anything else). But in some cases (read: Wikipedia) it’s almost impossible to practically do so, thanks to the enormous volume of content being constantly contributed and the difficulty of vigorously checking it for legal trespasses. What happens when you can no longer simply trust the EULA that ships with a particularly code library? Or when the content you grab off of Wikipedia (licensed under the GFDL) isn’t as open source as it claims to be? And most importantly, that using such “dirty” materials makes you, in the eyes of the law, guilty of content/idea theft?

It is hard to know what effect a court case involving Creative Commons will have, however, given the differences among various available licenses.

Creative Commons and GFDL address the other end of copyright, providing artists with licenses that permit reuse of their works. Open licensing is in one sense a pragmatic solution to copyright’s ills. Artists who want to license their works can easily express their preferences in a way that others can identify and trust. In this way, Creative Commons and GFDL licensing have enabled collaborations that might otherwise require a lawyer and a dozen inquiries. In another sense, open licensing is symbolic. It shows that alternatives to the current legal regime are possible. Artists can create a world where the law meets their expectations about legitimate appropriations — where museums and sterile McMash-Up contests aren’t the only places to see new kinds of art.

The Free Software Foundation's approach seems to be one of a fundamentalist, with only one right way to license. The CC licenses give more choice to a creator than does the GFDL, because of the range of available licenses, but that additional choice adds complexity and incompatibilities. Any material drawn straight from Wikipedia needs to be under the GFDL and the GFDL only for the foreseeable future. Wikipedia articles are often a starting point for many other works, and having compatibility with Wikipedia is important; many other materials are licensed with Creative Commons. Re-releasing GFDL material under a Creative Commons license might require a day in court at some point or FSF-CC negotiations to render CC-by-SA/NC and GFDL compatible. There have been talks of trying to arrange for CC-by-SA/NC compatibility with the GFDL, and that may finally be getting off the ground.

A final change incorporated into CC Version 3.0 is that the CC BY-SA 3.0 licenses now include a compatibility structure that will enable CC to certify particular licenses, stewarded by other organizations similarly committed to promoting a freer culture, as being compatible with the CC BY-SA. Once certified as compatible, licensees of both the BY-SA 3.0 and the certified CC compatible license will be able to relicense derivatives under either license. There are several obvious candidates for compatibility with the CC BY-SA, such as the Free Art License and the Free Software Foundation's Free Documentation License. Creative Commons' initial work has focused on achieving compatibility with the FDL.

Given the similarities and differences among the open licenses, it will be interesting to see both if they can negotiate or settle on some kind of compatibility with each other and what direction current and future legal challenges to these licenses will take the community. There are examples of infringement and improper use of content that has been openly licensed, but few that have actually made it to the courts. The open source community seems to be surviving, if not thriving, in spite of the SCO lawsuits, with decisions coming down decidedly against SCO. Hopefully the extent of the Virgin lawsuit will be increased publicity and understanding of open licensing options and precedent that reaffirms their legality.