Today, the United States Court of Appeals for the Federal Circuit has overtured a lower court’s decision in Jacobsen v. Katzer, stating that “Copyright holders who engage in open source licensing have the right to control the modification and distribution of copyrighted material.”

From Professor Lawrence Lessig’s blog

In non-technical terms, the Court has held that free licenses such as the Creative Commons 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.

If Open Source license terms are covenants, then they would be enforced in contract law at the state level, rather than in copyright law at the federal level. These two forms of law are quite different, as is what you must prove to win a case, and as are the costs and benefits of even bringing a case.

The EFF notes:

Copyright damages will often be more expansive than contract damages. The standards for injunctive relief are different. The prevailing party in a copyright case can seek attorneys’ fees, while the general rule in contract cases is that both sides bear their own attorneys’ fees.

The appeals court remanded to the district court for reconsideration of the appropriateness of injunctive relief.

An update on yesterday’s post, MBTA Makes MIT Subway Hack Guide Famous.

The MBTA issued a statement to CNET which tells their view of how MIT students approached shared information with the organization about flaws in its fare card system.

Now Dan Grabauskas, the general manager of the Massachusetts Bay Transportation Authority, has told the Boston Globe,

“There have been claims in the past that have been made against our card or other cards, and, happily, they’ve all been able to be dismissed or dealt with.”

Due to the temporary restraining order obtained by the MBTA, the students are unable to respond in the public debate over whether the MBTA uses adequate security measures.

Fortunately, the EFF is not so restrained; you can read their excellent analysis and advocacy here.