Creative Commons in court #2

6 januari 2010

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 Creative Comons 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 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, unless this occurs in accordance with the conditions of the License”.

“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, Knowledgeland 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 visit their site.

Submitted by Mia Garlick on 2006-03-16.
San Francisco, USA, & Amsterdam, The Netherlands, March 15, 2006

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