March 21, 2006 3:22 PM PST

Creative Commons license upheld by court

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A court in the Netherlands has ruled that a Creative Commons license is binding, in a case brought against a Dutch gossip magazine by an ex-MTV star.

This is one of the first times that the license--which offers more flexibility than traditional copyright licenses--has been tested in a court of law, according to legal Web site Groklaw.

"The Creative Commons licenses are quite new, so there has been very little in the way of case law so far, so this is a significant development," Groklaw reported.

Former MTV VJ Adam Curry sued Weekend, a Dutch gossip magazine, for copyright infringement after the magazine published photos of Curry's daughter without his authorization. The photos, which Curry had posted on the Flickr photo-sharing site, were covered by the Creative Commons Attribution-NonCommercial-ShareAlike 2.0 license, which states that while the licensed content can be used freely for noncommercial purposes as long as the source is made clear, the content cannot be used for commercial purposes unless the creator of the content agrees to waive the conditions.

The court ruled that Weekend must not use Curry's pictures again or it would face fines of 1,000 euros (about $1,200) for each photo used without permission, Curry said in his blog.

Audax, the publisher of Weekend, had argued that it was misled by the notice posted on Flickr near Curry's photos stating that they were "public" and that the link to the license was not obvious. But the court rejected this defense, stating that Audax should have carried out due diligence before publishing the photos, according to Creative Commons Canada, which published a translation of the court ruling.

Creative Commons Canada said the ruling is important as it makes it clear that it is the user's responsibility to find out about and adhere to the license.

"The Dutch Court's decision is especially noteworthy because it confirms that the conditions of a Creative Commons license automatically apply to the content licensed under it, and bind users of such content even without expressly agreeing to, or having knowledge of, the conditions of the license," said the organization.

Ingrid Marson of ZDNet UK reported from London.

See more CNET content tagged:
Adam Curry, court, license, magazine, Flickr

11 comments

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Obviously they need a permision
Obviously they need a permision! If there was no license they would not have been allowed to use the material without permision. If there is a license the law still applies and they still need permision, and they only have the permisions in the license unless they ask the author for other permisions and the author agrees.

Claiming that they were misled by not reading the details is the same as claiming they have been misled by not seeing any copyright notice! There is no legal requirement to explicitly limit the use. There is only legal requirement to explicitly allow use. By default all uses of copyrighted work is forbiden, and by default everything is copyrighted.
Posted by hadaso (468 comments )
Reply Link Flag
Obviously they need a permision
Obviously they need a permision! If there was no license they would not have been allowed to use the material without permision. If there is a license the law still applies and they still need permision, and they only have the permisions in the license unless they ask the author for other permisions and the author agrees.

Claiming that they were misled by not reading the details is the same as claiming they have been misled by not seeing any copyright notice! There is no legal requirement to explicitly limit the use. There is only legal requirement to explicitly allow use. By default all uses of copyrighted work is forbiden, and by default everything is copyrighted.
Posted by hadaso (468 comments )
Reply Link Flag
Flickr Clear Usage Guidelines
The Licensing on Flickr is clear and even sites examples: <a class="jive-link-external" href="http://www.flickr.com/creativecommons/" target="_newWindow">http://www.flickr.com/creativecommons/</a>

It's unfortunate Mr. Curry didn't change the type of permissions on his daughter's photos, but that's the way it goes. For the most part on the PhotoBlogs and Groups on Flickr, a photographer credit will go a long way.

Among its many, many advocates, UK Comedian Dave Gorman even sites why he loved Flickr: <a class="jive-link-external" href="http://technology.guardian.co.uk/opinion/story/0,,1731355,00.html" target="_newWindow">http://technology.guardian.co.uk/opinion/story/0,,1731355,00.html</a>

--Marilee Veniegas
<a class="jive-link-external" href="http://www.iwantmyess.com" target="_newWindow">http://www.iwantmyess.com</a>
Posted by marileev (292 comments )
Reply Link Flag
more clarification
Sorry I should clarify more, did the person who pulled it mean for it to be for profit? Yeah, probably so, but what about reuse of the image for a charity function? --mv
Posted by marileev (292 comments )
Link Flag
Flickr Clear Usage Guidelines
The Licensing on Flickr is clear and even sites examples: <a class="jive-link-external" href="http://www.flickr.com/creativecommons/" target="_newWindow">http://www.flickr.com/creativecommons/</a>

It's unfortunate Mr. Curry didn't change the type of permissions on his daughter's photos, but that's the way it goes. For the most part on the PhotoBlogs and Groups on Flickr, a photographer credit will go a long way.

Among its many, many advocates, UK Comedian Dave Gorman even sites why he loved Flickr: <a class="jive-link-external" href="http://technology.guardian.co.uk/opinion/story/0,,1731355,00.html" target="_newWindow">http://technology.guardian.co.uk/opinion/story/0,,1731355,00.html</a>

--Marilee Veniegas
<a class="jive-link-external" href="http://www.iwantmyess.com" target="_newWindow">http://www.iwantmyess.com</a>
Posted by marileev (292 comments )
Reply Link Flag
more clarification
Sorry I should clarify more, did the person who pulled it mean for it to be for profit? Yeah, probably so, but what about reuse of the image for a charity function? --mv
Posted by marileev (292 comments )
Link Flag
Not enough!
The fines should have been comparable to what is imposed for illegal for profit use of any copyrighted material. It shouldn't be just $1000 per incidence. That makes it a financial decision instead of a deterent: "will we make more than $1000 but stealing these pictures and printing them?"
Posted by (4 comments )
Reply Link Flag
fines
I wonder if the judge based the fines on say what a person would pay for Royalty Free images from sites like <a class="jive-link-external" href="http://www.gettyimages.com" target="_newWindow">http://www.gettyimages.com</a> ?

The low-ball fine does seem low. I remember Kim Bassinger &#38; Alec Baldwin had sued when pictures of their then newborn daughter were published, but that was before file-sharing.
Posted by marileev (292 comments )
Link Flag
Not enough!
The fines should have been comparable to what is imposed for illegal for profit use of any copyrighted material. It shouldn't be just $1000 per incidence. That makes it a financial decision instead of a deterent: "will we make more than $1000 but stealing these pictures and printing them?"
Posted by (4 comments )
Reply Link Flag
fines
I wonder if the judge based the fines on say what a person would pay for Royalty Free images from sites like <a class="jive-link-external" href="http://www.gettyimages.com" target="_newWindow">http://www.gettyimages.com</a> ?

The low-ball fine does seem low. I remember Kim Bassinger &#38; Alec Baldwin had sued when pictures of their then newborn daughter were published, but that was before file-sharing.
Posted by marileev (292 comments )
Link Flag
I live in the United States (thank God) where this crap isn't legal. In 1879 The United States Supreme Court settled it once and for all. Anybody has the right to make and sell as many items from any pattern that they wish. The copyright only pertains to the pattern; not what's made from it. There's NO such thing as obtaining any license or paying any fee/money to do so.

Nice try.
Linda
Posted by LindaDLai (1 comment )
Reply Link Flag
 

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