[cc-licenses] Fwd: Dutch Court upholds Creative Commons license

paul keller paul at waag.org
Thu Mar 16 13:34:28 EST 2006

fyi... (there also is a press release based on this mail on the  
cc.org site: http://creativecommons.org/press-releases/entry/5822)
/paul keller

Begin forwarded message:

> From: Bernt Hugenholtz <hugenholtz at ivir.nl>
> Date: 14 March, 2006 18:19:41 GMT+01:00
> To: Cc-Icommons at lists.ibiblio.org
> Subject: [Cc-icommons] Dutch Court upholds Creative Commons license
> Dutch Court upholds Creative Commons license
> Photographs made available on flickr.com under a Creative Commons  
> Attribution-Noncommercial-Sharealike license may not be reproduced  
> in a weekly magazine without the author’s permission.
> On March 9, 2006 the District Court of Amsterdam, judging in  
> summary proceedings, decided the first court case in the  
> Netherlands involving the validity of a Creative Commons license.  
> Local media celebrity Adam Curry (see http://curry.podshow.com/? 
> p=49) had published photo’s of his family on www.flickr.com under a  
> Creative Commons Attribution-Noncommercial-Sharealike license. The  
> photos also carried the notice ‘This photo is public’. The Dutch  
> weekly Weekend, a gossip magazine, had reproduced four photos in a  
> story on Curry’s children without seeking Curry’s prior permission.
> 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’, and that the link to the CC license  
> was not obvious. Audax, the publisher of Weekend, alleged that it  
> was informed of the existence of the CC license only much later by  
> its legal counsel. In sum, Weekend had assumed in good faith that  
> no authorization from Curry was needed. Moreover, Curry had not  
> incurred any damages by the publication of the photos in Weekend,  
> since the photos were freely available to the public on flickr.
> The Court rejected Weekend’s defense, and held as follows:
> “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.”
> 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.
> The full text of the decision (in Dutch) is available at http:// 
> zoeken.rechtspraak.nl/zoeken/dtluitspraak.asp? 
> searchtype=ljn&ljn=AV4204&u_ljn=AV4204
> Bernt Hugenholtz
> P. Bernt Hugenholtz
> Institute for Information Law
> University of Amsterdam
> Rokin 84
> NL-1012 KX  Amsterdam
> The Netherlands
> hugenholtz at ivir.nl
> http://www.ivir.nl
> tel +31-20-5253925
> fax +31-20-5253033
> _______________________________________________
> Cc-icommons mailing list
> Cc-icommons at lists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-icommons

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