Now this is interesting. The non-profit organization Creative Commons offers a set of copyright licenses that enable content creators to grant additional rights beyond those normally provided by copyright law – we publish TidBITS under a Creative Commons license (see "Seven Hundred Issues, a CMS, and Creative Commons" in TidBITS-700). But like all open source licenses, as far as I know, none of the Creative Commons licenses had been tested in court, and without that trial by fire, no one really knew if the licenses would hold up to any future suit. Years ago, when I was researching open source licenses to see what could be used for XNS, the general consensus I heard was that open source licenses likely wouldn’t withstand a serious (and well-funded) legal challenge, but none had ever been so tested, largely because trying to break an open source license legally would be horrible PR for any company.
Now, however, a Creative Commons license has been upheld in court. Former MTV VJ and podcaster Adam Curry had posted photos of his family on the photo-sharing site Flickr, assigning them an Attribution-Noncommercial-Sharealike Creative Commons license in the process. Apparently, a Dutch tabloid published those photos without getting Curry’s permission, thus violating the terms of the Creative Commons license. Curry sued for copyright and privacy infringement, and the District Court of Amsterdam agreed with him, stating clearly that the conditions of the license were not properly observed. The magazine’s publisher claimed it was misled by the phrase "This photo is public" (a standard bit of Flickr boilerplate, as I understand it) and therefore failed to check into why the photos were also labeled with the Creative Commons "Some rights reserved" tagline.
The utility of this decision in my mind is that it affirms that the Creative Commons licenses don’t suffer from some sort of legal loophole that would enable a lawyered-up company to infringe upon them with impunity.
After I posted the above in ExtraBITS, Contributing Editor Glenn Fleishman and I had a bit of a discussion about whether the decision was really that positive. Glenn was concerned that the Dutch court essentially slapped the wrist of the magazine publisher: throwing out the privacy infringement claim (apparently the magazine also published the name and school of Curry’s 15-year-old daughter, along with her means of transport to school), not setting a fine, and threatening a fine of 1,000 Euros (about $1,200) per photo for any future violation. To Glenn, the lack of any damages undermined the fact that the Creative Commons license had been upheld.
Rather than pretend to be a lawyer in the argument, I turned to a real one – our friend Fred von Lohmann of the Electronic Frontier Foundation (EFF). In essence, Fred told us that the remedies were an entirely separate issue, since the remedies are defined by national law, and that you couldn’t really draw any conclusions about the strength of the license by the damages awarded. Fred also noted that although the judgment upholding the validity of the Creative Commons license is good news, it’s mostly important in the Netherlands, since the idea behind Creative Commons licenses – that copyright owners should be able to opt for less than full protection of their work – remains legally untested in many parts of the world.