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Creative Commons License Upheld by Dutch Court 121

Posted by Zonk
from the go-cc-go-cc-go dept.
musicon writes "As seen on Groklaw, a recent court decision upheld the the Creative Commons license in the Netherlands: '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. The ruling rejected a 'the license wasn't clear' defense, particularly for sophisticated entities, and it upheld the license as binding without the licensee having to agree or even to have knowledge of the terms of the license.' You can read successful plaintiff Adam Curry's blog on the ruling too."
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Creative Commons License Upheld by Dutch Court

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  • http://www.dailysourcecode.com/ [dailysourcecode.com] where I'm sure there will be some audio feedback
  • Hmm... (Score:2, Funny)

    by DarkIye (875062)
    I don't know why, but it seems every link in this article is covered by the Creative Commons licence!

    Maybe it's something to do with this new Greasemonkey script I'm running...

    • Sssh. Don't say that too loud. Next thing you know, someone's going to get out a pen and re-write all contracts, Copyright, deeds, and other legal documents. They'll own everything. Then someone else'll rewrite those changes. And then someone else will do it. Next thing you know, everyone'll be running around the streets, pens and markers in hand. It'll be pandemonium!
  • by idontgno (624372) on Friday March 17, 2006 @01:33PM (#14942938) Journal
    Actually, I don't understand a lot of somethings, but this one thing seems relevant.

    FTA:

    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.

    You, the user of the content, are bound by the license without knowing it. How is this different from a shrinkwrap license? [lex2k.org]

    But those are bad, and the CC license is good, and they share the same ambush-applicability feature.

    I'm sure it's because I'm too simpleminded to comprehend the difference, but it seems to me that poison for the goose ought to be poison for the gander.

    • Wouldn't it work in the same way any copyright works, just like you wouldn't be able to reproduce CNN.com's stories without permission?
    • by Anonymous Coward on Friday March 17, 2006 @01:40PM (#14942991)
      You're liable for copyright infrigement if you copy a copyrighted work, whether or not you knew that work was protected by copyright law.

      If in doubt about the license of content, assume it's copyrighted. The CC licenses only grant you rights beyond what copyright does.
    • by iainl (136759) on Friday March 17, 2006 @01:41PM (#14942998)
      The difference, and I'd suggest it is a big one, is that the CC license grants the user EXTRA rights over and above the default copyright situation. "Evil" shrinkwrap licenses take them away.

      An individual who doesn't know the precise details of the copyright status on file (because they don't have the license that should accompany it) won't get burned by assuming that the default applies. They just aren't aware of all the things they can do.
      • Exactly.

        With a typical EULA license, if you reject the license, it should fall back on regular copyright law which doesn't include BSA clauses anti-fair use restrictions, but which includes a "no unauthorized copying provision".

        With a CC license, if you reject the license, it should fall back on regular copyright law which gives you less rights (i.e. it includes a "no unauthorized copying provision").

        • Exactly. The question is, though, is that what the judge actually said? Or did he say that you have the rights and restrictions specified in the CC license even if you reject it, and that it does not fall back on normal copyright? I certainly hope it's the former!
      • by Firehed (942385) on Friday March 17, 2006 @02:12PM (#14943299) Homepage
        Not to mention that the CC licenses have that nifty little "actual, human-readable English" version as well as the legalese. Anyone failing to understand the legalese, fair enough, but "You may copy this content and reproduce it, but not for profit" (or whatever) couldn't get much clearer.
      • The difference, and I'd suggest it is a big one, is that the CC license grants the user EXTRA rights over and above the default copyright situation. "Evil" shrinkwrap licenses take them away.

        While I agree that the intent is different, I think he was referring to the submarine effect that copyright has in general terms. The problem is that 'good' and 'evil' don't have the any meaning in the legal system. There is only 'legal' and 'illegal' and an EULA is an EULA is an EULA. This 'good' judgement might set

        • No, it's not just different "intent", it's different in action. You can always choose not to use PERMISSIONS, whereas unilaterally deciding to reject RESTRICTIONS is a recipe for trouble.

          • If you ignore a CC license (through ignorance or otherwise), then you default back to normal copyright. You don't redistribute, you don't include it in your own works, etc. No harm is done to you or to the creator.
          • If you ignore a EULA, you risk being sued by the creator and/or audited by BSA's winged monkeys.

          Alternat

          • You can always choose not to use PERMISSIONS, whereas unilaterally deciding to reject RESTRICTIONS is a recipe for trouble.

            ...and that is precisely the point. The (cc) license in question requires attribution. So this license is in fact making demands of it's own. The fact that many people (here) feel that these are not unreasonable demands isn't really the question. From Microsoft's point of view, no decompiling and demands on your first born daughter (those monsters!) are also reasonable. So we are in

            • But the Creative Commons restrictions only apply if you use it above and beyond what copyright permits. It's like, "Yes, you can do extra stuff, as long as you agree to...", which beats the heck out of "If you want to do the normally legal stuff, you have to agree to..."

              Remember that the base here is copyright, not public domain. Creative Commons is more restrictive than public domain, but more permissive than copyright. EULAs are less permissive than copyright.
            • No, CC does NOT make demands, it provides alternatives. It's silly to complain that CC-by requires attribution, because the alternative is "don't redistribute without explicit approval". At no time does CC stand in the way of normal legal rights.

              I stand by my analogy of speed limits. The part you don't seem to get is that public domain (aka the Autobahn) is not Not NOT the default.

            • What this case does is (possibly) create some precedant that shrink-wrap/click-thru EULAs are enforceable...


              No it does not.

              The ruling only says: if you wanna use get a agreement with the author, one way to get an agreement is simply to accept the authors license. doing NOTHING and assuming you can get away later claiming "you did not know" is no way to get an agreement with the original copyright owner.

              Shrink wrap EULAs are something completely different. This term is usually used in conjunction with buying

            • The (cc) license in question requires attribution. So this license is in fact making demands of it's own.


              No, it does not!!!! the CC gives you the right use, modifie and redistribute!!!! By default you have no such rights!!!! Defining under which terms it (the license or in other words the auther) gives you those rights is the sole authors privilege to define.

              angel'o'sphere
          • Unfortunately, under some circumstances, the CC licenses can lock people into "restrictive freedoms". They might not be able to use some CC licensed content because while CC licenses offers the freedom to redistribute and thus republish, they also do so for derivative works as well, which may be inappropriate for the project at hand. For a similar case, consider the "viral nature" (from some companies' perspective) of the GPL.
            • They might not be able to use some CC licensed content because while CC licenses offers the freedom to redistribute and thus republish, they also do so for derivative works as well, which may be inappropriate for the project at hand.

              Yet still a better offer than you get from regular copyright restrictions.

      • The difference, and I'd suggest it is a big one, is that the CC license grants the user EXTRA rights over and above the default copyright situation.

        That's for US copyright. I'm not sure about the Netherlands though. What are the privileges of the user under Dutch copyright, and what is the CC license in question?

        Off topic, I can easily imagine the day when some of our "revered" F.O.S.S. licenses become more restrictive than copyright. Imagine a nation that loosened its copyright laws so that the restriction
        • This is why licenses must never be unilaterally binding without assent.

          The point, I expect, is that by default, it is illegal for you to make use of the work (barring fair use etc.). Everything is automatically copyrighted, so anything that was not made by you must be assumed to be inaccessible to you.

          The only thing that may allow you to use the work is if the copyright holder expressly gives you permission to do so. For any work that is distributed under some license, therefore, you have one of two situati
          • This ruling wasn't about defaulting to copyright, it was about upholding license terms that were never even seen, let along agreed to. Imagine thsi ruling being applied, as it will, to proprietary EULAs and other onerous licenses. Imagine being subject to the Sony license on a CD that you didn't even know was there.

            But you don't even need to go that far. Every condition in a "free" license is in reality a restriction, and thus in some tiny small way a restriction over and above what copyright imposes. That
            • This ruling wasn't about defaulting to copyright, it was about upholding license terms that were never even seen, let along agreed to.

              This is positively wrong. When the court found that the license had not been followed, it was treated as any other copyright infringement. In particular, the defendant was not forced to comply with the license (e.g. by offering its publication with the same license) but was rather warned that future copyright breaches of the same kind will be fined. As I said, then, the defen
              • This is positively wrong. When the court found that the license had not been followed, it was treated as any other copyright infringement.

                My apologies. I should have dug deeper. And the Slashdot summary could have been accurate as well. I can only blame myself for merely skimming TFA.

                p.s. Is there going to be a countersuit for the fraudulent use of the term "this photo is public"?
                • . . . the Slashdot summary could have been accurate . . .

                  Amen to that. As usual, the summary completely failed to sum up the essentials of TFA. These things appear to be written by spin doctors in training.

                  Is there going to be a countersuit for the fraudulent use of the term "this photo is public"?

                  Seems doubtful. If there even is a legal definition of a work being "public", I would guess that publication on the Internet qualifies for it.

                  Of course, IANAL.

            • This ruling wasn't about defaulting to copyright, it was about upholding license terms that were never even seen, let along agreed to.


              you are wrong, exactly about that it was.

              The copyright infringer first claimed: oh oh, I did not infringe copyright, after all its under a "free license" ... in other words, the author gave up the copyright.

              Then he said, well well, but then the CC can't be valid!!!

              And the courts answer was: even if you don't know the exact temrs, the license is valid. After all its your respo
            • This ruling wasn't about defaulting to copyright, it was about upholding license terms that were never even seen, [...]

              I quote from the fine article

              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.

              The judgement was not that the license supercedes copyright law, but that just because a website had a sign saying a picture was public, it need no


        • That's for US copyright. I'm not sure about the Netherlands though. What are the privileges of the user under Dutch copyright, and what is the CC license in question?


          Pretty similar.

          You have no rights to use, modify, redistribute of somone elses work. And certainly users have no priviledges ;D authors have priviledges, not users.

          angel'o'sphere
    • It's not any different from a shrinkwrap license. If you copy a work, you have to either do it under some license from the author or you're infringing. The case is easier here because the infringer was a magazine which should have been smart enough to know that it just can't grab pictures off websites, even if the website said "this is public."

      THe problem with shrinkwrap licenses is not really that they exist, but that the terms are often quite onerous.
    • I'm sure it's because I'm too simpleminded

      Well, I wouldn't go that far, but the problem is with copyright, not shrinkwrap licenses or CC or the GPL or anything else. Copyright law allows people to be "ambushed" like this, simply because everything is copyrighted unless explicitly stated otherwise.

      If you found a penny on the ground, it would be near impossible for even the most overzealous attourney general to find something to convict you with for spending that penny. But, if you were to find a snippet of
      • Interesting analogy.

        But, if you were to find a snippet of code or a line from a song just laying in the street, that's completely different, because even though you're holding that code or song, it really belongs to someone else (this must be that remaining 1/10).

        The only point I would make is that someone else does not "own" the code or song. The right to copy and reproduce that code or song is restricted by Copyright law and is likely reserved by someone else. Of course, you do not know for sure just

      • Interesting analogy...
        On the other hand, if you use that piece of paper that you found the snippet on, you almost certainly couldn't be found guilty of anything. You could put it up in a store window, or show it to your friends, or give it away, or trade it for goods (like the penny).
        And also on the other hand, if you were to _copy_ the penny, you'd probably get into lots of trouble (ok, maybe not for a penny, but if it were a $20 :-)
        • You could put it up in a store window

          That's a good question, but most likely if you put the piece of paper up where people can see it and somehow the rights holder finds out about it, they'll probably sue for royalties. Just like how you can't play music from a radio to your customers without paying up, they'll claim that their content (somehow) added value to your product or service and therefore they deserve a cut.

          I wonder though, what would happen if you claim you were using the piece of paper, and not
          • The difference is that with print, you're not making a copy of it for people to enjoy it, but with audio, since we can't store audio directly, in order for people to enjoy it you'd have to make a copy of it. That's why if I buy a print or a painting and put them up in my business, the artist has nothing to say about it.
    • by Bob9113 (14996) on Friday March 17, 2006 @01:54PM (#14943121) Homepage
      But those are bad, and the CC license is good, and they share the same ambush-applicability feature.

      I'm sure it's because I'm too simpleminded to comprehend the difference, but it seems to me that poison for the goose ought to be poison for the gander.


      Not simple-minded. You just don't know how the license works. Just a lack of information, which is not a bad thing, and easily remedied. To wit:

      CC licenses do not restrict the behavior of anyone who obeys traditional copyright. That is, you cannot, without authorization, redistribute the copyrighted material. In this case, the magazine in question did redistribute the material in question.

      So what does the CC license have to do with it then? isn't it a simple copyright case?

      In this case, the owner of the copyrighted material offered additional rights. The owner effectively said, "Under certain conditions, I will grant you authorization to redistribute this material."

      That is, copyright says what you can and cannot do with the material, and you are free to treat CC'd material 100% according to copyright law. No problem.

      If, however, you would like to do something that is not allowed by copyright law but is granted by the CC license, then you must abide by the conditions set out in the license.

      Shrinkwrap agreements are different. They say that you are not allowed treat the product according to copyright law.
      • CC licenses do not restrict the behavior of anyone who obeys traditional copyright.

        Yes they do! Read the damned licenses! Any condition to the license is also a restriction. Consider the Share Alike licenses. Copyright does not have a restriction against not sharing. So a condition that requires sharing is an additional restriction over and above what copyright imposes. It doesn't matter the permissions outweight the restrictions, because the restrictions are STILL there. It doesn't matter if you feel the r
        • SARCASM ENABLED
          It's those pesky founding fathers! They revolted against the King and supported a right to vote. This took away our rights, because they didn't also include a right to vote many times in the same election, and a right to stop people we disagree with from voting too, and all those other rights we should have gotten too. We were free when we had no vote, now we are slaves because we have recognition of just one right which wasn't recognized before, instead of unlimited rights that 'should' go w
        • Copyright does not have a restriction against not sharing.

          Are you insane, or just stupid? That is exactly the point of copyright. You cannot "share" copyrighted material when the "sharing" involves making additional copies of the material. Sure, the first sale doctrine allows you to "share" a work by giving away or selling your legally purchased copy, but that's not what is at issue here. Even if you obtain a work licensed under the CC Share Alike license you can reject the license and give away your

          • Of course copyright restricts sharing. It was bad wording on my part. Sometimes I have trouble expressing myself, which is a stupid thing to do on a site full of professional nitpickers.

            Let's say ordinary copyright gives you permissions (1) and restrictions (A B C D E). Let's say a free license gives you permissions (2 3 4 5 6) but only if you do (F). That (F) is a restriction, and it is a restriction not covered by ordinary copyright.

            Distribution is a pre-requisite to sharing. Therefore there is no need fo
            • p.p.s. On a contrasting note, if you could find some traditionally copyrighted software, you could indeed lend your CD of it to a friend. It's perfectly legal if you didn't retain your own copy of it. But if it were under the GPL, such would not be the case. Your sharing would be restricted. That is because the GPL requires you to ALSO lend the second CD (the one with all the source code) at the same time. You MUST make the source code available, even if you have the legal right under copyright to "share" t

            • "Distribution is a pre-requisite to sharing."

              Yes, but copying and distributing isnt. It's the copying part that is enforcing and binding.

              "That only one of us can read the book at any given time is irrelevant."

              Unfortunately, no, it isnt irrelevant.

              To truly comprehend copyright and its aspects, you need to separate and clear up certain fundamentals that are confusing at best and actively propagandized against by the ip lobby.

              A physical incarnation of a copyrighted work is a specific piece of property. If you
    • Actually, it's pretty much the same thing with copyrights. You agree to them if you use whatever they're applied to, even if you don't know all the terms of it. Creative Commons shouldn't be any different in such an enforcement, even though it's meant to open up more rights than normal copyright.
      Ignorance of the terms really isn't an excuse, regardless of what license it's under.
    • How is this different from a shrinkwrap license?

      It isn't, and that's a good thing. The more people are punished for not checking the license of content before they use it, the more people will demand those license terms be put out front, where they can see some of the ridiculous things that they are held to by some license agreements.

      Those that insist on hiding it and putting usurous restrictions on the use of their content will then finally be subject to market forces. UNtil then, what's good for the goo
    • by MobyDisk (75490) on Friday March 17, 2006 @02:05PM (#14943212) Homepage
      This is very important question! The answer lies in the difference between Copyright and Contract.

      A Copyright is a license that applies to a work and allows the copyright holder to dictate the circumstances upon which a work may be copied. Examples of copyrights are the GPL, LGPL, Creative Commons, and the good old "All rights reserved" which is the default. A copyright can ONLY state conditions regarding copying. It cannot state anything about reverse-engineering, reselling, writing reviews of the product, disclosing benchmarks, etc.

      A Contract is a license that applies to anything at all and allows the two parties to agree to anything at all, but requires legally-binding proof that both parties agree (such as a signature, witnesses, etc). Examples of contracts are employment contracts, purchase orders, etc. A contract can state anything. In the case of software, a contract could state that the user cannot reverse-engineer it, publish benchmarks about it, write revews, etc.

      Granting of rights:

      Suppose I write some software, copyright it, and I give you a copy. You can do anything you want with it EXCEPT copy it.

      A copyright grants rights to the consumer. My copyright could say that "The author grants you the right to make infinite copies" or "The author grants you the right to make copies so long as you include the source code" or "The author grants you the right to make copies so long as you don't reverse-engineer it." In neither case did copyright place any restrictions upon you. You can still reverse-engineer the software if you want! You just can't copy it if you do.

      A contract removes rights from the signer. If I make you sign a contract, that contract could say that "The author denies you the right to reverse-engineer this software." In this case the contract took away a right you already had. You can't reverse-engineer the software at all.

      Your original question - why is this good news?
      How is this different from a shrinkwrap license? But those are bad, and the CC license is good, and they share the same ambush-applicability feature.
      Yes, the CC license is good because copyrights are good, because they grant rights to the users of the work. You buy the product from the store without knowing about the copyright. So you must assume you cannot copy the product at all in any way because that is the default rights you have. But you open the package and are ambushed with the good news that it is GPL so you CAN copy it so long as you give out the source code along with it. Yaaaay!

      But shrink-wrap licenses are bad because you buy the product from the store without knowing about the license. So you assume that you can reverse-engineer the application and write a benchmark on it. But you open the package are are ambushed with the bad news that you CANNOT benchmark it or reverse-engineer it. Booo!

      • A Contract is a license that applies to anything at all and allows the two parties to agree to anything at all, but requires legally-binding proof that both parties agree (such as a signature, witnesses, etc).

        A contract requires no such thing. It may be orders of magnitude easier to sue someone for breaching a contract if you've got unassailable proof of what they agreed to, but an oral contract made between two people with no one else around is still a contract.

        • >A Contract is a license that applies to anything at all and allows the two parties to agree to
          >anything at all, but requires legally-binding proof that both parties agree (such as a signature,
          >witnesses, etc).

          >>A contract requires no such thing. It may be orders of magnitude easier to sue someone for breaching
          >>a contract if you've got unassailable proof of what they agreed to, but an oral contract made
          >>between two people with no one else around is still a contract.

          That's why an
      • For such a useful and interesting comment, where's the IANAL disclaimer?
    • They're both copyright law, so it's right and proper that the law be applied in both instances. The fact that shrinkwrap licenses are considered "bad" is not because the copyright enforcement is 'bad', but because the conditions they impose upon the user are onerous, confusing, and seek to remove - in many instances - the statutory rights of the person buying the content.

      You don't see copyright notices in books - for example - stating that you can't re-sell the book when your done with it, but I've certain

      • They're both copyright law,


        No they are not.

        A EULA is ot a license. A EULA is an agreement, thus it is a contract.

        EULAs are void because you can't expose a "second contract" on one party after the legal transaction of "buying something" is already conducted.

        An EULA attempts to say: now as you are at home with your new property there are ADDITINAL contract terms we expose now on you. And the EULA tries to convice you you would agree by default by simply using your new property.

        But the simple fact that the itm
        • Sorry for double post, but my markup got messed up.


          They're both copyright law,


          No they are not.

          A EULA is ot a license. A EULA is an agreement, thus it is a contract (or an attempt to be a contract).

          EULAs are void because you can't expose a "second contract" on one party after the legal transaction of "buying something" is already conducted.

          An EULA attempts to say: now as you are at home with your new property there are ADDITINAL contract terms we expose now on you. And the EULA tries to convice you you would
    • Keep in mind when these licenses come to play.

      With the images, simply viewing the image does not invoke the license. However, if you wish to publish one of these images, you have to deal with Copyright. And to avoid breaking the law, you have to comply with the terms of the license the licensee has outlined. Claiming ignorance of the license is not a valid defense (even more so for someone in a publishing industry). The term "users of such content" is really a reference to publishers... not a general us
    • The difference here is that the items in question (the images) are covered by Copyright. Copyright is explicitly granted to the author automatically - no claim or registration is required. Copyright is what the other rights (pubilcation, ownership, etc) flow from. Simply stating that "these photos are public" does not explicitly grant any rights. The judge (correctly in my view) stated that in absence of any explicitly granted rights, an organization with the resources of the defendant, especially a pub
    • There is more than one person on Slashdot. A person who thinks shrink wrap licenses are good is not necessarily the same person who thinks the Creative Commons applies automatically is good.

      Actually, your position if you don't have a license should be one of default deny - you are denied of doing anything (except as covered by fair use under copyright law). Creative Commons actually adds rights you would otherwise not have at all. So if you're ignorant of an image being under the Creative Commons Attributio

    • You, the user of the content, are bound by the license without knowing it. How is this different from a shrinkwrap license?


      Pretty simple:

      *I* create some stuff, lets say a writing (or some source code).

      *You* want to use my stuff.

      Who is resposnible to figure if he can use it? *I* or *You*?

      According to most laws in Europe and elsewehre where copyright laws exist no one has any rights to use *my* stuff for anythign without getting a license first.

      In all cases where I'm aware off, the person who wants to use *

    • You can go to the Creative Commons website to familiarize yourself with the CC licenses, including licenses you're very unlikely to see used (such as the more objectionable CC licenses like the developing-nations license and the sampling license that disallows verbatim non-commercial sharing). Shrinkwrap licenses are commonly inaccessible to you until you buy the package and open it, or begin to install the software and see the license panel in the installer program, or somehow begin acquiring something yo
    • The difference is that you can't copy someone else's copyrighted work without either getting a licence from them, or restricting your activities to those the law permits without a licence. So getting the CC licence ruled invalid doesn't help you win a copyright infringement case.
  • That is misleading (Score:5, Interesting)

    by Anonymous Coward on Friday March 17, 2006 @01:36PM (#14942954)
    It is misleading to say that the license is binding without the licensee knowing or accepting it. The license isn't actually binding if the licensee doesn't accept it, but then copyright kicks in and the non-licensee has even fewer rights, so either way the (non-)licensee is in violation (of the law or the license). You can't however enforce a license that the other party hasn't agreed to.
    • by gr8_phk (621180)
      "You can't however enforce a license that the other party hasn't agreed to."

      To me, that was always the loophole for EULAs. "By pressing this button and installing this software you agree to these terms". Well no. No law (until recently) says pushing a button means you agree to anything. The only thing that applies meaning to the installation is the EULA, so if I don't agree then pushing the button doesn't mean anything.

      Same with credit card companies changing their terms "your continued use of the card

      • by pla (258480) on Friday March 17, 2006 @02:10PM (#14943281) Journal
        The only thing that applies meaning to the installation is the EULA, so if I don't agree then pushing the button doesn't mean anything.

        More interestingly, what if someone else agrees on my behalf, without my permission? Now, you might initially say that that other person would bear responsibility for my use, but what if the third-party involved had fur, whiskers, and a tail? And just to avoid the "I have responsibility for my pets" problem, presume this furry li'l EULA-circumventor stores nuts for the winter and came in through an open window.

        Or for a potentially more likely way around agreeing to a EULA (and in fact, the way that I personally use whenever possible) - Most Windows installers (and all MSIs?) allow a silent installation as a command-line option. Silent, as in, it never asks you to agree, or even tells you about what you would otherwise have agreed to. I'd like to see that scenario played out in court...
    • That's what makes this a bad ruling, because the court DID make the license binding without the "licensee" accepting it. Copyright did not "kick in" and make this a case of copyright infringement. There are severe implications in this ruling.
  • The licence violators were only told not to use his Flickr images without permission again. For this particular violation, they've escaped with little more than a rap across the knuckles. It is good that the Dutch courts acknowledged the CC licence, but the punishment was very weak.
  • by Anonymous Coward
    the company was _not_ penalized for using
    the pictures in the first place
  • Not so fast (Score:5, Insightful)

    by nietsch (112711) on Friday March 17, 2006 @01:53PM (#14943106) Homepage Journal
    The courts agreed that weekend/audax was wrong, but did not award any damages, because Curry did not incur any losses himself: he published them on his own website.
    That could translate as a company could take sourcecode licenced under an open licence. When they are eventually found out, they can argue they don't have to pay any damages because the code was available for free. But these were just short proceedings, so the verdict may be different if Curry decides to push this trough.
    • Re:Not so fast (Score:3, Interesting)

      by Anonymous Coward
      The way to deal with this "loophole" is to offer a choice of licenses: An open source license for the people who don't mind sharing back and a commercial license for the people who can't or don't want to share. When someone infringes on your copyright, the damage is the money that they didn't pay for the commercial license. (IANAL, this is not legal advice.)
      • When someone infringes on your copyright, the damage is the money that they didn't pay for the commercial license. (IANAL, this is not legal advice.)

        I like that. Of course, even without the proprietary option, I could argue that I suffered damages because the source code was GPLd specifically to avoid this situation and that I would have demanded a license fee (possibly per copy) of anyone who wanted to use it in a commercial product.

  • The lesson here (Score:4, Insightful)

    by ortholattice (175065) on Friday March 17, 2006 @01:56PM (#14943132)
    The lesson here is that you probably shouldn't use "Attribution-Noncommercial-Sharealike" for anything, because "commercial" is often not a clearly defined concept, and it's up to the whim of a court to decide that.

    For example, suppose you use it on a personal web page. In exchange for a free web page from an ISP, you agree to put up with Google ads on the page. Certainly, if the page becomes popular because of the "Attribution-Noncommercial-Sharealike" work, the provider will benefit financially via increased ad exposure. So is this commercial or noncommercial?

    There are other problems. You cannot put a "Attribution-Noncommercial-Sharealike" work, e.g. an icon for your app, in open-source software under GPL, BSD, etc., since it would defeat the whole purpose of those licences. Imagine if Linux were under "Attribution-Noncommercial-Sharealike" - then it would have barely developed to become a hobbyist toy for a few hackers, if even that.

    For this reason, I personally steer clear of anything with a "noncommercial" restriction, treating it as if it were covered by standard copyright. It's just not worth the risk.

  • I'm no fan of click-thru licenses, or any license that doesn't have a signed contract. For those who know my usual opinion, I'm also against copyright laws of any kind.

    I do think there can be an acceptable way to agree, through contract, to tell a person what they can and can't do with a product you sell them. I'm not sure how we can facilitate Internet purchases (and licensing) without a signature, though. For me, I am not comfortable with the idea that a simple click or download is the equivalent of ac
    • I am against click-thru licensing on commercial products.

      but not when it comes to my music.

    • I do think there can be an acceptable way to agree, through contract, to tell a person what they can and can't do with a product you sell them.

      I don't see why any company should be able to decide how I use things I own.
      Your morning coffee now starts with This Starbucks Coffee License is a single user license, and does not allow you to sell or give away this coffee to anyone else. The coffee must be consumed within fifteen (15) minutes of purchase. Unused potions must be disposed of at a designated Star

    • What will it take for competitive businesses to attack the current licensing standards and bring a real amount of change to the licensing structure?

      Come on, you know the answer to that. As soon as it becomes more profitable to change, they will do so.

      As far as your other questions, I am also intrigued.
    • Does anyone have any thoughts to how we can facilitate contract acceptance for transactions where we can't sign it?

      Cryptographic signatures seem like they might do the trick, though you might need to have them registered somewhere to prove your identity.

    • Why would a capitatechnoanarchist like yourself want the overhead associated with signatures and contract law? Obviously, the invisible market hand forces will force people who deal with such inefficient methods of establishing 'rights' to go into bankruptcy, as the differential efficiencies are tremendous.
    • In the case of the CC Licenses, the usual objections to click-thru licensing don't apply. In the absence of the license, what you could do with the work would be limited by copyright law. The license lets you do things you couldn't do without it, but it doesn't restrict you from doing any things you could do without it. So, if you don't agree to the license, or don't know it exists, fine. Just obey copyright law, and you can't possibly run afoul of the license.
    • I'm assuming most geeks are against the click-thru license agreement.

      Here's how it works:

      1) I am against license agreements in installers. By the time you have the installer, you either have all the rights you need to run the program via default copyright laws, or you are pirating the software.

      2) I am NOT against click through license agreements before you can purchase/download software. This is fair as your are making an informed decision. You are being given the details up-front, and are making an inf
  • So I have the blog link in context: Who is Adam Curry and why is a tabloid publishing photos about his daughter? Besides the obvious answer that tabloids are usually scum.
    • Re:Question? (Score:4, Informative)

      by dr_dank (472072) on Friday March 17, 2006 @02:06PM (#14943225) Homepage Journal
      Adam Curry was one of the first MTV VJs. You can hear his podshow and a bunch of his MTV colleagues on Sirius Satellite radio.
    • Google's second result is Wikipedia [wikipedia.org]
      • Which doesn't contain the answer to my question of why they were taking photos of his daughter. But such is the slashdot; ask a question, get GIYF as your answer. I wasn't asking anyone to do research into it, just a simple question if anyone knew off hand. But thanks for the link :).
        • They were not taking pictures of his Daughter. They had sent some creep fron the Netherlands to the UK to follow her. FFS she is 16! What would you think of someone who follows a girl (with well off parents) to school and then puts in the paper details of her daily route etc?

          Pictures were apparently stolen off the Flickr site at http://www.flickr.com/photos/adamc1999/sets/ [flickr.com] where you can get pictures of his family, friends, plane, car and even the table he does his podcasts on. It's his family photo alb

  • Gotta love the reply someone left to TFA:

    By analogy, most people don't charge when they have sex.

    They don't?!? Why didn't anyone tell me?

    Yet this should not be seen as evidence that the market value of sex is zero and hence there is no damage in cases of rape.

    True, but I think it is safe to say that the victim has not directly suffered loss of income unless they were a hooker (obviously physical, psychological and indirect damage notwithstanding).

    Bad analogies, it seems, are not exclusive to /.
    • TFA: Yet this should not be seen as evidence that the market value of sex is zero and hence there is no damage in cases of rape.

      Most people don't charge when they beat you bloody, and yet assault is still illegal.

      Bad analogies, it seems, are not exclusive to /.

      Yeah, but we deal in bulk here.

  • Creative Commons is a set of licenses that vary significantly. There is no single "Creative Commons license".

    In this particular case, the license in question is Attribution-NonCommercial-ShareAlike 2.0 [creativecommons.org].

    The differences between the licenses are important because some of the CC licenses permit the kind of use that this case was about, and the particular license he used does not.

  • I think that it's misleading to say that the license is binding on recipients despite the fact that they didn't know about it.. The better way to put it is to say that, without the license they don't have any rights to use the picture beyond what Copyright rules equivalent to 'fair use' would allow.

    To say that this (true, permissive) license is 'binding' could create false 'precedents' about restrictive contractual pseudo-'licenses' that companies like Microsoft purport to hoist on people after they've p

  • As usual, the Dutch prove they're the only civilized people on the planet.
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