Creative Commons License Upheld in Dutch Court

Tony Meyer (apparently) - 08:23am Mar 27, 2006 PST
via email

[Adam C. Engst, from ExtraBITS]
> Now, however, a Creative Commons license has been upheld in court.
> Former MTV VJ and podcaster Adam Curry had posted photos of his
> daughter on the photo-sharing site Flickr,

I believe the photos included his entire family, including his wife,
who also has celebrity status in the Netherlands. As well as the
copyright-infringement case, Curry brought a child-endangerment case
(because the article included information such as how and when his
daughter travelled to school).

> assigning them an Attribution-Noncommercial-Sharealike Creative
> Commons license in the process. Apparently, a Dutch tabloid
> published those photos without getting Curry's permission, thus
> violating the terms of the Creative Commons license. Curry sued for
> copyright and privacy infringement, and the District Court of
> Amsterdam agreed with him, stating clearly that the conditions of
> the license were not properly observed. The magazine's publisher
> claimed it was misled by the phrase "This photo is public" (a
> standard bit of Flickr boilerplate, as I understand it) and
> therefore failed to check into why the photos were also labeled
> with the Creative Commons "Some rights reserved" tagline.

Anyone interested in this should listen to the relevant sections of
many (particular around the time of the case) of Curry's podcasts,
where he discussed the case in general (the show notes will point out
which episodes are relevant).

<http://dailysourcecode.com> [warning: this isn't a 'family safe'
podcast]

Curry was pretty disappointed with the decision: the magazine wasn't
really punished, just told if they did it again they would get a
small fine ($1500 if I recall correctly). In other words, the photos
were valued at about $1500, when media companies are able to sue for
thousands of dollars in damages for one illegally-copied $0.99 song.
He's pretty well-off and was really (at least, this is his public
position, and it's believable in my opinion) after a precedent-
setting case that severely punished the magazine/editors.

(As far as I know) Yahoo!/Flickr have not commented on the case, and
certainly haven't changed the "public" tag on photos in any way (the
judge correctly pointed out that any journalist should know better
than that) or made the Creative Commons link more prominent.
Creative Commons were very quiet during and before the ruling
(Curry's podcast talks about that as well).

> The utility of this decision in my mind is that it affirms that the
> Creative Commons licenses don't suffer from some sort of legal
> loophole that would enable a lawyered-up company to infringe upon
> them with impunity.

I think a case in the US (note that in the Netherlands there is no
jury system, just an appointed judge) is really needed for this. At
the moment infringers can cite the case as showing that online
content is worth less than content that isn't available online. A
victory for Creative Commons, but a fairly weak one.

=Tony.Meyer