Recently, the Creative Commons license was put to the test – and upheld – in the Dutch courts. Adam Curry had sued Audax, the publisher of the magazine “Weekend”, for – among other things – breach of the terms of the Creative Commons Attribution-NonCommercial-ShareAlike 2.0 license that applied to the pictures on his Flickr site. In this post, I raise three points that I did not come across yet in the blogosphere.
The Facts
Weekend had published in its magazine – alongside more traditional paparazzi-style pictures – four pictures taken from Adam Curry’s Flickr site. It had attributed the picture to Adam Curry, but had omitted to include any reference to the CC-license that Mr. Curry had applied to his pictures, as so many Flickr users. Weekend did not seek or obtain permission before publishing the pictures.
After some prompting from Mr. Curry’s lawyer, Gijs van Poppel, Weekend had published a rectification in which it admitted to using pictures from Mr. Curry’s “virtual picture album” and that it should have asked for his permission to do so. This was not satisfactory to Mr. Curry, and he started summary proceedings against Audax before the district court of Amsterdam.
The Ruling
In a sort-of first of a kind ruling (full-text, in Dutch only), the court held that the Creative Commons license applies, and that the professional publisher of the magazine could not use the pictures covered by the license. The blogosphere has reported on this case extensively, but let me add the view of a Dutch copyright lawyer. (Mr. Curry also sued for privacy infringement and tort, but I will not discuss that part of the ruling here.)
Three noteworthy details:
1. The court applied a higher standard of care to the professional publisher of the magazine. As a result, the court did not honor the defense that the mention “this picture is public” was confusing as to the copyright nature of the pictures. (As you probably know, Flickr allows you to set pictures as public or private depending on who you would like to be able to view the pictures.) The court furthermore held that Audax should – when in doubt about the contents and applicability of the license – have actively followed-up with Mr. Curry as to the copyright-status of the pictures.
I would not rule out that commercial use by someone not a professional party of (not super-clearly labeled) NonCommercial CC-ed content would be ruled on differently. And I am not sure that you can equate “professional” to “for money” here. (Mind, this is not about the contents of the license, but about is applicability. The CC license itself says that “You may not exercise [the license] granted […] in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.” ) Granted, this is not the kind of use most controversial, but with the democratization of creation (something the CC movement and its license bolsters) it is something that will happen more and more often.
2. Although the court did not honor Audax’s defense that there could be no damage as “the pictures were available for free on the Internet anyway”, an argument somewhat reminiscent of 1995 or thereabouts, it did hold that the “commercial value” of the pictures was limited for precisely the same reasons. I find this strange. It also seems to make the “NonCommercial” feature of the CC-license a little less useful, as it would mean not only “NonCommercial” but also “WorthLessWhenCommercial.”
3. The court assumed that the license was applicable before judging the merits. This is in line with the 2003 Netwise case in which the Rotterdam district court case ruled that terms and conditions posted in a different location (of the same site) from the content apply to such content. (See Louis Jonker on that here.) Not having click-through type terms and conditions on websites no longer seems to be a valid argument then. I would argue that this applies to distributed content as well, but that’s a debate for another day. (The facts of the case don’t mention whether Audax subscribed to Mr. Curry’s RSS-feed of his Flickr-stream ^_^.)
You can hear claimants discuss the case, before the ruling came down, on Adam Curry’s podcast (via Denise Howell). You can follow the discussion of the ruling on Mr. Curry’s blog here.
You can also read about this case on Groklaw; and in number 4.6 of the EDRI-gram, contributed by Sjoera Nas of Bits of Freedom in the Netherlands, in which she also mentions a CC-license related case in Spain.
[This is a post from Technology Law Culture: http://tlc.oosterbaan.net.]
Afgelopen week stond in Boekblad een artikel van mij over het toezicht in het afgelopen jaar door het Commissariaat van de Media (CvdM) op de vaste boekenprijs: “Streng doch terughoudend: een jaar toezicht door het Commissariaat voor de Media.”
