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| Creative Commons License Upheld by Dutch Court |
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Thursday, March 16 2006 @ 06:05 AM EST
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Sander Marechal, who found and translated the News Picks story about the court decision upholding the Creative Commons license in the Netherlands, now sends us the news in English and in much greater detail, from a blog entry "Dutch Court upholds Creative Commons license," on the Creative Commons Canada website. I think you'll find it interesting because it includes a translation of a chunk of the ruling, and since Creative Commons Canada provides the information under the Creative Commons 2.5 Canada license, I can provide it to you in full. The significant piece is this: the Creative Commons licenses are quite new, so there has been very little in the way of case law so far, so this is a significant development, as you will see. You can read successful plaintiff Adam Curry's blog on the ruling too. He adds this important piece: that while his claim for damages for past use was denied, going forward, if the pictures are used again, the defendant
"will be fined 1000 euros (about $1200) for each photo they use
without permission." The ruling rejected a "the license wasn't clear" defense, particularly for sophisticated entities, and it upheld the license as binding without the licensee having to agree or even to have knowledge of the terms of the license. I'm sure you can extrapolate from the ruling: In case of doubt as to the applicability and the contents of the License, it [defendant] should have requested authorization for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, and has assumed too easily thet publication of the photos was allowed. Audax has not observed the conditions stated in the License […]. The claim […] will therefore be allowed; defendants will be enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License.” I gather Audax is commercial, and Curry's license for the photos is Attribution-Noncommercial-Sharealike, so I don't see how Audax can ever use the photos in accordance with this license. While you are on the Creative Commons Canada website, note that they are setting up a public domain registry for Canada, to "create an online, globally searchable catalogue of published works that are in the Canadian public domain."
Here's the information from Creative Commons Canada:
******************************
From: P. Bernt Hugenholtz, University of Amsterdam: Institute for Information Law
Photographs made available on flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license may not be reproduced in a weekly magazine without the author’s permission.
On March 9, 2006 the District Court of Amsterdam, judging in summary proceedings, decided the first court case in the Netherlands involving the validity of a Creative Commons license. Local media celebrity Adam Curry (see http://curry.podshow.com/?p=49) had published photos of his family on www.flickr.com under a Creative Commons Attribution-Noncommercial-Sharealike license. The photos also carried the notice ‘This photo is public’. The Dutch weekly Weekend, a gossip magazine, had reproduced four photos in a story on Curry’s children without seeking Curry’s prior permission.
Curry sued Weekend for copyright and privacy infringement. As to the copyright claim, Weekend argued that it was misled by the notice ‘this photo is public’, and that the link to the CC license was not obvious. Audax, the publisher of Weekend, alleged that it was informed of the existence of the CC license only much later by its legal counsel. In sum, Weekend had assumed in good faith that no authorization from Curry was needed. Moreover, Curry had not incurred any damages by the publication of the photos in Weekend, since the photos were freely available to the public on flickr.
The Court rejected Weekend’s defense, and held as follows:
“All four photos that were taken from www.flickr.com were made by Curry and posted by him on that website. In principle, Curry owns the copyright in the four photos, and the photos, by posting them on that website, are subject to the [Creative Commons] License. Therefore Audax should observe the conditions that control the use by third parties of the photos as stated in the License. The Court understands that Audax was misled by the notice ‘This photo is public’ (and therefore did not take note of the conditions of the License). However, it may be expected from a professional party like Audax that it conduct a thorough and precise examination before publishing in Weekend photos originating from the internet. Had it conducted such an investigation, Audax would have clicked on the symbol accompyinying the notice ‘some rights reserved’ and encountered the (short version of) the License. In case of doubt as to the applicability and the contents of the License, it should have requested authorization for publication from the copyright holder of the photos (Curry). Audax has failed to perform such a detailed investigation, and has assumed too easily that publication of the photos was allowed. Audax has not observed the conditions stated in the License […]. The claim […] will therefore be allowed; defendants will be enjoined from publishing all photos that [Curry] has published on www.flickr.com, unless this occurs in accordance with the conditions of the License.”
The Dutch Court’s decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license.
The full text of the decision (in Dutch) is available at http://zoeken.rechtspraak.nl/zoeken/
dtluitspraak.asp?searchtype=ljn&ljn=AV4204&u_ljn=AV4204 .
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| Authored by: Just_Bri_Thanks on Thursday, March 16 2006 @ 06:09 AM EST |
Here!
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: Just_Bri_Thanks on Thursday, March 16 2006 @ 06:12 AM EST |
I suppose if you must...
---
Bri. Just Bri. Thank you.
(With a long i sound.)
Without qualification, certification,
exception, or (hopefully) bias.[ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 16 2006 @ 07:06 AM EST |
But Audax isnt fined for using the pictures. Point is that they already
published them and got away with it. Their spokeman said on Dutch television
"we can't publish them again, but we never wanted too in the first place,
so who cares?"
Seems it would have been better if Audax got fined.[ Reply to This | # ]
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| Authored by: Dark on Thursday, March 16 2006 @ 07:47 AM EST |
| It's interesting *why* Audax wasn't fined. The plaintiffs made a claim for
damages, which the judge denied because "the commercial value of the four
photographs is small, since they are already available to everyone on the
Internet" (my translation).
The decision mentions an offer of 1500 euros
that Audax made for the photos; perhaps that was a settlement offer. I can't
figure out from the decision whether that amount was ever paid, or whether the
offer was canceled by this ruling. However, the judge takes it into account and
says "it has not been shown in any way that the photographs would have a higher
value than that." (again my translation)
[ Reply to This | # ]
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| Authored by: brian on Thursday, March 16 2006 @ 11:40 AM EST |
"The Dutch Court’s decision is especially noteworthy because it confirms
that the conditions of a Creative Commons license automatically apply to the
content licensed under it, and bind users of such content even without expressly
agreeing to, or having knowledge of, the conditions of the license."
DISCLAIMER---I didn't RTFA (Read The Fine Article) so I am commenting on PJ's
statement above...
The part that really worries me is: "and bind users of such content even
without expressly agreeing to, or having knowledge of, the conditions of the
license."
This goes against the grain. The whole idea of "automatic licenses"
that this condition implies is just plain wrong. A user of data should ALWAYS
know the conditions, up front, of the data they are using and the license
restrictions that apply to it. It shouldn't be automatic especially since the
penalty is so high.
This of course is simply my opinion...
B.
---
#ifndef IANAL
#define IANAL
#endif[ Reply to This | # ]
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| Authored by: darkonc on Thursday, March 16 2006 @ 03:56 PM EST |
| It doesn't bind, but it applies because, absent an explicit permission, it's the
only way that they could have gotten permission to use the pictures.
IANAL,
but I'm guessing that, were the judge going to get deep into the technicalities
of this rulling with a 20 page written decision, he would simply note that one
way for the magazine to get permission on the pictures would be to presume that
they had accepted the license and analyze on that basis.
As an alternative
-- given that the company use the supposed fuzziness of the license as part of
their defence, then acceptance of the license is a necessary
prerequisite.
No matter how you dice it, though, failure to abide by the
license means that, absent some other license, they're in violation of copyright
and the court can proceed on the basis of copyright violation (and possibly also
contract violation). ---
Powerful, committed communication. Touching the
jewel within each person and bringing it to life.. [ Reply to This | # ]
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| Authored by: Anonymous on Thursday, March 16 2006 @ 08:12 PM EST |
SO Adam, thinks he won this one ?
The "endangerment" claim was lost.
They get no fine.
They can use them again if they want for $1000 a time (less than normal for that
particualr magazine for nice snaps)
No apology.
Gee. If Mr Curry thinks he won this one, I REALLY hope that IBM dont
"win" their case in the same manner ... why doesn;t the guy just face
up to the fact he lost. bigtime.[ Reply to This | # ]
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| Authored by: so23 on Thursday, March 16 2006 @ 10:24 PM EST |
| I think the courts reasoning here was wrong and potentially dangerous for all
free licences.
How is the value of things which are freely available and
licensed under a free license to be estimated in determining damages. If the
courts look to determine some kind of market price to estimate damages as this
court seems to have done, then the fact that something is licensed for free may
be seen as evidence that the market price is zero leading to minimal damages at
most.
Combine this with the general reluctance in some jurisdictions to
award costs, and we could end up in a world where free licenses are universally
and openly abused since there are no effective sanctions against violating them
and the cost of taking legal action to try to enforce them is
prohibitive.
In SCO v IBM for example, if the court upholds IBMs claim that
SCO used IBMs copyrighted and GPLed material in violation of the GPL, such
reasoning might result in the court upholding IBMs claims yet awarding no
damages at all because the estimated market price of the software is zero (as
evidenced by it being available free for download)!
What the courts need to
recognise is that when work is available under a free license it is issued free
only to those who obey the conditions of the license. Only people who
respect the conditions of the license are in this market. To people who want to
violate the terms of the license the market price is much higher.
Someone
can be quite willing to give things away for free to those who respect certain
conditions, but nevertheless may be completely unwilling to give something away,
or even sell it at any price to someone who is unwilling to respect those
conditions.
By analogy, most people don't charge when they have sex. Yet
this should not be seen as evidence that the market value of sex is zero and
hence there is no damage in cases of rape.
When something is issued under a
free license the courts need to look much more carefully at how it is to be
valued. People put a license with conditions on their work when they have
something of value they wish to protect. The value that they wish to protect
however doesn't have to be a monetary value measured in dollars.
In the case
of the photographs in this case that value might be an intangible distaste for
gutter journalism and a desire to not support it in any way. In the case of GPL
software the value lies perhaps in a desire to protect the commons from the
predation of those who would take without giving.
What would people accept to
violate these principles? That is the true extent of the damages in such a
case.
Now some people value their principles more than others. In some cases
the value placed on principles may be extremely high indeed. This unfortunately
does not helpo the court, and I wouldn't like to see judges trying to estimate
damages on the basis of how principled the plaintiff seems to be. The courts
should look instead to other ways to estimate value.
One obvious place to
look at at the cost of obtaining a similar item in a non-free fashion. For
example damages for violating the GPL with linux should be costed in terms of
the expense of rewriting a similar operating system from scratch, and the prices
of non-free alternatives. [ Reply to This | # ]
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| Authored by: Anonymous on Friday, March 17 2006 @ 02:41 AM EST |
Given that a gossip rag will probably pay a photographer more than 1000 euro for
a good picture, making them pay that amount for a stolen picture is like asking
them to do it.[ Reply to This | # ]
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| Authored by: Anonymous on Saturday, March 18 2006 @ 06:39 AM EST |
There is no such thing called automatic license.
What the court was saying is that if Weekend were
more careful in understanding that the simple statement
"this photo is public" was not equivalent to blanket
permission from the copyright holder, it would not have
copied the photos without getting permission from the
copyright holder.
If Weekend wants to copy photos, it could have to
comply with the conditions of the license. If Weekend
does not like the conditions, it could have to ask the
copyright holder for permission with different conditions.
License does not apply to photos automatically. The
license applies only when a party agrees to the conditions
in the license, just as what the court said.
I can do many things that are permitted by the U.S.
copyright law but not permitted by the license. This
is possible simply because the license does not
apply automatically.
Joseph Pietro Riolo
<josephpietrojeungriolo@gmail.com>
<riolo@voicenet.com>
Public domain notice: I put all of my expressions in this
post in the public domain.
[ Reply to This | # ]
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