A court case in Amsterdam has backup for the first time the validity of the Creative Commons Attribution-Noncommercial-Sharealike license used by many people as an alternative to traditional all rights reserved copyright.
On 9th March in summary proceedings at the District Court of Amsterdam. A local media celebrity Adam Curry had published photo’s of his family on the Flickr photo sharing website under a Creative Commons Attribution-Noncommercial-Sharealike license but a weekly Dutch gossip magazine 'Weekend' reproduced four photos in a story on Curry’s children without seeking Curry’s prior permission.
Curry sued Audax, the publisher of Weekend, for copyright and privacy infringement. Audax tried to argue that Creative Commons license was not obvious and said that they had assumed in good faith that no authorization from Curry would be required. They also argued that Curry had not incurred any damages by the publication of the photos in Weekend, since the same photos were freely available to the public on the web.
The Dutch Court however rejected Weekend’s defense, and issued the following ruling...
“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 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.”
This ruling confirms that Creative Commons license conditions automatically apply to the works licensed under it, and bind further users of such content even if they have not expressly agreeing to the license conditions or even prior knowledge of them.
Curry sued Audax, the publisher of Weekend, for copyright and privacy infringement. Audax tried to argue that Creative Commons license was not obvious and said that they had assumed in good faith that no authorization from Curry would be required. They also argued that Curry had not incurred any damages by the publication of the photos in Weekend, since the same photos were freely available to the public on the web.
The Dutch Court however rejected Weekend’s defense, and issued the following ruling...
“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 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.”
This ruling confirms that Creative Commons license conditions automatically apply to the works licensed under it, and bind further users of such content even if they have not expressly agreeing to the license conditions or even prior knowledge of them.
