Once more unto the breach, dear friends, once more: the dreaded Free Is Not Open argument rears its ugly head again. I've made my position (indeed free != Open, and the distinction matters) clear elsewhere, and was gratified recently to find PMR agreeing; now it seems that the Open Medicine editorial team takes the same position:

The Canadian Medical Association Journal (CMAJ) has just published:

•  Stanbrook et al. Congratulations to our colleagues at Open Medicine [commentary]. CMAJ July 3, 2007; 177.

Here is our response:

Although the endorsement by CMAJ's editors of open access medical publishing is welcome, we would like to take this opportunity to clarify several points raised in their commentary.1 First, there is an important distinction between open versus free-access publication. Open Medicine has not only adopted the principle of free access, that is, making content fully available online, but endorses the definition of open access publication drafted by the Bethesda Meeting on Open Access Publishing. This definition stipulates that the copyright holder grants to all users a free, irrevocable, worldwide, perpetual right of access to, and a license to copy, use, distribute, transmit and display the work publicly and to make and distribute works derived from the original work, in any digital medium for any responsible purpose, subject to proper attribution of authorship. Given that CMAJ holds copyright and charges reprint and permission fees, it is not in fact an open access journal.

In comparison, Open Medicine does not assume the copyright of our authors' work. We believe that it is only fair and just that authors retain the ownership of their work; as such, Open Medicine does not charge reprint or permission fees, and our work is available for reproduction for educational and teaching purposes without copyright limitations or charges.  We use a Creative Commons Copyright License that also ensures derivative works are available through an open access forum. It is through this creative and unlimited use of published material, with due attribution, that we believe scientific discourse can flourish. This truly open access forum also has a contribution to make to a journal's integrity, independence, and freedom.   [...]

Chris Surridge of PLoS also agrees, and supplies an excellent analogy:

Free Access to scientific research is great, and all publishers who make their content free to read should be praised for doing so. But this is not Open Access. It is like giving a child a Lego car and telling them that they can look at it, perhaps touch it, but certainly not take it apart and make an aeroplane from it. The full potential of the work cannot be realised.

Where the OM team refer to Bethesda, Chris links to Berlin and goes on to enumerate

...the four unmistakable marks by which you may know, wheresoever you go, the warranted genuine Open Access publication:

1. Content is made freely and immediately accessible to all.
This basically means that you can get it on the internet without paying anything in addition to what it costs you to access the internet.

2. Authors retain the rights of attribution.
So the work is the authors [' property]. The author doesn't sign over the copyright to the publisher or anyone else. Rather the author allows the publisher to publish the work under licence. A licence which also ensures that:

3. Content can be distributed and reused without restriction.
So I or anyone else can take Open Access content and use it, in whole or in part, for any purpose including purposes that have not yet been dreamt of as long as I don't infringe the Authors rights of attribution.

4. Papers are deposited in a public online archive such as PubMed Central.
This ensures, as best as anyone can, that the above three conditions continue to apply to the Open Access content in perpetuity.

It's been my contention that in the absence of explicit, conspicous and machine-readable Open licensing, condition 3 is violated because in this litigious age, the conscientious and the risk-averse will not download and derive without explicit permission. I got "explicit and conspicious" from Peter Suber:

The newer definitions [of OA] recognize one further element: an explicit and conspicuous label that an open-access work is open access. Readers should be told when a work is free of price and permission barriers. They might be reading a copy forwarded from a friend and not know whether the publisher would like to charge for access. They might want to forward a copy to a friend and not know whether this kind of redistribution is permitted. When an article has no label, then conscientious users will seek permission for any copying that exceeds fair use. But this kind of delay and detour, with non-use as the consequence of a non-answer, are just the kinds of obstacles that open access seeks to eliminate. A good label will save users time and grief, prevent conscientious users from erring on the side of non-use, and eliminate a frustration that might nudge conscientious users into becoming less conscientious.

and "machine-readable" from Peter Murray-Rust:

For me, if my robots cannot read the articles then as a human I have no interest at all in reading the "fulltext".

Peter MR is not saying that free access for humans is useless, but that to realize the full potential of text- and data-mining, OA materials need to be machine-readable, which includes letting the machines know what they are allowed to have.

I must confess that finding my thoughts echoed by such leading OA proponents makes me feel better about being, on this issue, at odds with Stevan Harnad. I simply cannot agree that Open "comes with" Free, and the distinction bothers me. It should be relatively easy to convert Free to Open -- simply add a Creative Commons or similar license -- but I think it would be better to do that proactively. If we gloss over the difference between Free and Open at this relatively early stage of OA, we risk creating a (potentially enormous) body of Free text that must be updated to include complete, useful permissions when at last we realize that Free Is Not Open. (The game's afoot: / Follow your robots, and upon this license / Cry "Free is not Open"!)