Learn from the mistakes of others

Creative Commons Licenses Enforced in Dutch Court

Many people have asked us over the years whether any court had held that CC licenses were enforceable. I have always found this question to be amusing. In my many years as a lawyer in private practice, if the licenses I had drafted were *not* litigated, then I was considered to have done my job well. But for some, it seems that keeping people out of court is not an indication of CC's success; the legitimacy of the CC licensing system depended on some judicial validation.

I suspect that flows from the litigious culture of the USA. Many are of the opinion that until and unless something has been tested in court, you cannot make definitive statements about the legality of something. This lay opinion is fostered, I think, by media and entertainment representations of how the US legal system works. (It is erroneous.)

As a lawyer, I agree with Garlick's statement that "if the licenses I had drafted were *not* litigated, then I was considered to have done my job well." Lawyering is not about litigation. Less than 1% of disputes have to be resolved by courts, and disputes are not the be-all-and-end-all of legal work. A heck of a lot of it is about agreements.

Many jokes are made about contracts and contract law. But at the end of the day, most of them work. Most are completed without complaint or requiring any outside intervention.

The Creative Commons licenses are contracts. They set out the terms under which the owner of the copyright in a work will allow others to 'exploit' or use their copyright.

So now we have that to some extent. 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.

To have found otherwise would have been difficult to justify, I think. If the CC licenses were not found to set out the terms under which the owner of the copyright was prepared to allow their copyright works to be used by third parties, as they clearly state they are intended to do, all online contracts would suddenly become suspect.

The CC licenses clearly intend to set out terms in writing. That ought to satisfy the need for terms in writing for those jurisdictions where that is required (contracts are not required to be written here in Aus, though writing does provide evidence of the intention of the parties).

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 CC 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 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 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 www.flickr.com, unless this occurs in accordance with the conditions of the License.”

For more information, see the CC Press Release.

[The full text of the decision (in Dutch)]