LawFont.com

From GrokLaw, the District Court of Amsterdam has upheld the validity of the Creative Commons Attribution-Noncommercial-Sharealike license. Adam Curry, a well-known media figure now living in Holland, posted some pictures of his family on photo-sharing site Flickr (his profile appears to be here). The photos carried a notice saying “This photo is public”, and were published under a non-commercial Creative Commons licence. A Dutch magazine reprinted four of the photos in a story on Curry and his children.

Curry sued, on two grounds: that the magazine had endangered his daughter by publishing the name and location of her school and her means of getting there each day; and for reproduction of the pictures.

The court dismissed the endangerment count, but allowed the copyright claim. (See summary on the Creative Commons Canada website). The judge accepted that the publisher had, in fact, not seen the (somewhat small) link to the Creative Commons licence on the website, but held that, as a commercial party, it would have found it if it had exercised due diligence.

However, the judge merely ordered the magazine not to publish any of Curry’s copyrighted photos in future, on pain of a 1,000 euro fine. Barring any explanation for the order based on, say, the particular court’s powers (eg if it has some jurisdictional limit or a limit on what it can order), this is somewhat inexplicable.

First, the publishing of the photos is a breach of copyright. No more and no less than, say, copying a copyrighted song. There is nothing to indicate that Curry did not own a valid, subsisting copyright to the photos, and the licence term clearly indicates: “Noncommercial. You may not use this work for commercial purposes.” A licence is simply permission to do what the rights-holder could otherwise forbid someone to do: and in this case, the permission was limited, and did not extend to commercial use. The magazine clearly published the story and photos for a commercial purpose, and therefore went beyond what it was authorized to do.

Second, there is nothing to show that the magazine did not make some profit (ie extra sales) by including the photos in the story. Yet it did not even have to pay for their use. While the order against future copying of photos may be perfectly orthodox and fair, note that the magazine did not even have to pay anything in the nature of a reasonable licence fee (say, based on what it would have paid a paparazzi for similar photos).

There is some dissonance between this case, and the fact that the RIAA can sue for the maximum statutory damages of $150,000 per work, and settle for thousands, in respect of songs that cost 99 cents to download.