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Creative Commons License Upheld by Dutch Court
Thursday, March 16 2006 @ 06:05 AM EST

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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