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A cloud lifted
William Patry gives his take on the lifting of one of the darkest clouds hanging over open source software. The New York Times covered this as well. A judge recently ruled that SCO, a software company, had no claim to some of the underlying code in UNIX, contrary to its long-held assertion.
This claim has been one reason many companies had been skittish about open source software–the nightmare scenario being they would wake up to find out one day that the software they thought was open source was actually proprietary and suddenly have to pay steep licensing fees.
While an exact analogy for open education would be problematic, the scenario is nonetheless instructive, as it’s not a stretch, given the current liberal intellectual property practices of many faculty, to imagine some materials under full copyright might slip–intentionally or not–into supposedly openly-licensed materials, exposing downstream users to some risk.
I’m not a lawyer, so this may not be an exactly accurate reading of potential risk, but one of the more interesting ways this might happen with content is through application of fair use. Materials protected by full copyright might legitimately be included in an open publication in the context of fair use (a careful publisher would note the full copyright status of such materials). Downstream users mistaking them as openly licensed, however, might remix the materials into a different context that is not defensible under fair use, thus exposing themselves to litigation.
This is just one illustration of the many complexities surrounding open licensing of content.
