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Some Rights Reserved

Published on September 11, 2008

By Fred Benenson, Culture Program Associate for Creative Commons

On August 13th, 2008 the United States Court of Federal Appeals handed down an opinion that further cemented the legal footing that gives “open content” licenses like Creative Commons (CC) their legal teeth. The decision of Jacobsen v. Katzer was monumental for the free culture and free software communities for a number of reasons. Public licenses, like CC’s six “Some Rights Reserved” copyright licenses and the one being litigated over, the Artistic License, grant rights to the public in general as opposed to a specific party. Where a private license between a filmmaker and a distribution company might stipulate that a particular distributor is given the exclusive rights to show a film, a public license might stipulate that anyone who comes across the film is allowed to show it so long as they give proper attribution and do not make modifications.

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Increasingly artists, musicians, and filmmakers are choosing Creative Commons licenses to distribute their work to the public because they understand the value, economic and otherwise, of the Internet and its power for digital media distribution. Our licenses offer a middle ground between the standard “All Rights Reserved” monopoly over one’s work and the other extreme—releasing a work into the public domain and relinquishing all control. By attaching a Creative Commons license to their work, countless creators have granted permission in advance and have demonstrated that they are comfortable with the world sharing and perhaps even building upon their intellectual creations.

At our most recent estimate there are over 130 million objects on the web licensed under Creative Commons. CC licensed media is now used in a variety of projects and publications, ranging from Wikipedia to The New York Times and has been used in major motion pictures like Children of Men. Arts Engine’s own Media that Matters Film Festival makes CC licensing a mandatory requirement for submitting to the festival. Our Non-Commercial No Derivatives license enables Arts Engine to offer DVDs to educators and other members of the public that expressly grant the right to use the films in a non-commercial context. This alleviates a lot of the pressure that supporters of the festival might have otherwise encountered when attempting to screen the shorts. Instead of spending time and money asking Arts Engine for permission to show a film from the festival, Arts Engine has used CC licenses to give permission in advance in a safe and legal way.

Until now, however, the legal underpinnings of our licenses had not been tested in US court. While there were two significant court decisions in Europe that upheld the CC licenses, many were waiting for an American court decision that would affirm their validity, Now, however, we have a decision that not only upholds licenses like ours, but advocates open source licenses in the courts words, as methods that serve “to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago.”

Fred Benenson

One of the essential questions for the court to decide in the Jacobsen case was whether a public license could be enforced in the same way as a private one. The court held that public licenses can be applied in general to a work, and that if the conditions of a public license are broken, by any member of the public, then the license to that person is broken and the owner of the work has the right to avail themselves of the remedies provided by the copyright statute which are much better the ones available to them by a broken contract. In this particular case it meant that a software distributor must adhere to the terms of the Artistic License when they modified or distributed a version of of the software designed for programming model railroads, but the ramifications of the decision are clear: an author can release her creative works to the public for free but still legally reserve some rights. Better yet, it means that owners of publicly licensed works can still get access to the remedies available under the copyright statute.

This puts all open content and open source licenses on better footing and finally levels the playing field and gives public licensors equal footing with private ones. Excepting for a Supreme Court battle, it is perhaps the best possible outcome Creative Commons and our community could have hoped for. Looking forward, creators, lawyers, and courts together can use this decision as precedent for supporting open licenses that enable collaborative creation and sharing of our culture in ways previously not possible.
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Fred Benenson is Creative Commons’ Culture Program Associate and is based in New York City. He works to advocate adoption of Creative Commons licenses by startups, museums, artists, and musicians.

This article is available for noncommercial use under a Creative Commons license. It was originally published on MediaRights.org, a project of Arts Engine, Inc. This notice must accompany the article at all times.

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