> 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