[Nettime-nl] CREATIVE COMMONS LICENSES UPHELD IN DUTCH COURT (Modified by Geert Lovink)

[partha <partha@bytesforall.org>]

CREATIVE COMMONS LICENSES UPHELD IN DUTCH COURT
Submitted by Mia Garlick on 2006-03-16 10:49 AM.

San Francisco, USA, & Amsterdam, The Netherlands, March 15, 2006

The first known court decision involving a Creative Commons license
was handed down on March 9, 2006 by the District Court of Amsterdam.
The case confirmed that the conditions of a Creative Commons license
automatically apply to the content licensed under it.

The proceedings arose when former MTV VJ and podcasting guru Adam
Curry published photos of his family on the well-known online photo-
sharing site Flickr under a Creative Commons Attribution-
Noncommercial-Sharealike license. The Dutch tabloid Weekend
reproduced four of the photos in a story about Curry’s children.

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’ (which is a standard feature of all Flickr
images that are viewable by the public), and that the link to the CC
license was not obvious. Weekend had assumed that no authorization
from Curry was needed. Audax, the publisher of Weekend, argued that
it was informed of the existence of the CC license only much later by
its legal counsel.

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 accompanying
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 full text of the decision (in Dutch) is available here.
http://zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp?searchtype=ljn&lj
n=AV4204&u_ljn=AV4204

“We are very happy with this decision as it demonstrates that the
millions of creators who use creative commons licenses are
effectively protected against abuses of their willingness to
contribute to the commons,” said Paul Keller, Public Project Lead for
Creative Commons in the Netherlands.

“This decision confirms that the Creative Commons licensing system is
an effective way for content creators to manage their copyrights
online,” said Lawrence Lessig, Creative Commons CEO & Chairman, “The
decision should also serve as a timely reminder to those seeking to
use content online, to respect the terms that apply to that content.”

About Creative Commons Netherlands

Creative Commons Netherlands is collaboration between Creative
Commons Corporation, Waag Society, Netherland Knowledgeland
Foundation and the Institute for Information Law of the University of
Amsterdam. Creative Commons is supported by the Dutch Ministry for
Education, Culture and Sciences. For general Information (in Dutch)
visit their site. http://nl.creativecommons.org/

About Creative Commons

Creative Commons is a not-for-profit organization, founded in 2001,
that promotes the creative re-use of intellectual and artistic
works­whether owned or in the public domain. Creative Commons
licences provide a flexible range of protections and freedoms for
authors, artists, and educators that build upon the "all rights
reserved" concept of traditional copyright to offer a voluntary "some
rights reserved" approach. It is sustained by the generous support of
various foundations including the John D. and Catherine T. MacArthur
Foundation, the Omidyar Network Fund, the Hewlett Foundation, and the
Rockefeller Foundation as well as members of the public. For general
information, visit their site. http://creativecommons.org/

Contact

Paul Keller
Project Lead
CC Netherlands, Amsterdam
Email: paul@waag.org





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