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Creative Commons License Upheld by Dutch Court

Posted by ryuzaki0 on 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."

19 of 121 comments (clear)

  1. Hmm... by DarkIye · · Score: 2, Funny
    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...

    --
    To prevent this day from getting worse, I'll just read ERROR as GOOD TH
  2. I don't understand something... by idontgno · · Score: 4, Insightful
    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?

    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.

    --
    Welcome to the Panopticon. Used to be a prison, now it's your home.
    1. Re:I don't understand something... by iainl · · Score: 5, Informative

      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.

      --
      "I Know You Are But What Am I?"
    2. Re:I don't understand something... by Bob9113 · · Score: 5, Informative

      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.

      --
      Stop-Prism.org: Opt Out of Surveillance
    3. Re:I don't understand something... by MobyDisk · · Score: 5, Informative
      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!

    4. Re:I don't understand something... by Firehed · · Score: 4, Informative

      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.

      --
      How are sites slashdotted when nobody reads TFAs?
    5. Re:I don't understand something... by dwandy · · Score: 2, Insightful
      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 an 'evil' precedent.
      I guess I share the concern that this may validate shrink-wrap/click-thru EULA's...
      --
      If you think imaginary property and real property are the same, when does your house become public domain?
    6. Re:I don't understand something... by bentcd · · Score: 2, Insightful

      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 situations:

      1) You aren't aware of the license. You must assume you cannot use it.

      2) You are aware of the license and decide to use the work since the license lets you.

      When it is discovered, at some point, that you have used the work, it is therefore reasonable to assume that you did so by bullet 2 above. The alternative is that you blatantly violated copyright (bullet 1) and then you've really lost the case by default.

      The license is therefore "binding" in the sense that the only alternative to being bound by it is to default to the worst possible case in this particular scenario, namely having violated copyright.

      --
      sigs are hazardous to your health
    7. Re:I don't understand something... by Adult+film+producer · · Score: 2, Informative

      Well.. the creative commons licence is available in a whole bunch of languages.. no problem if you're Dutch..

      http://www.creativecommons.nl/

  3. That is misleading by Anonymous Coward · · Score: 5, Interesting

    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.

    1. Re:That is misleading by pla · · Score: 3, Interesting

      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...

  4. It's like Copyright, silly by Anonymous Coward · · Score: 4, Informative

    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.

  5. Not so fast by nietsch · · Score: 4, Insightful

    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.

    --
    This space is intentionally staring blankly at you
    1. Re:Not so fast by Anonymous Coward · · Score: 3, Interesting

      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.)

  6. The lesson here by ortholattice · · Score: 3, Insightful
    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.

  7. Re:Worth Listening to hist PodCast by gsnedders · · Score: 2, Informative

    Show #351, specifically.

  8. Re:Question? by dr_dank · · Score: 3, Informative

    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.

    --
    Where does the school board find them and why do they keep sending them to ME?
  9. Comments on TFA by hotdiggitydawg · · Score: 2, Funny

    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 /.

  10. Re:Licenses without signed contracts by theLOUDroom · · Score: 2, Insightful

    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 informed decision.

    3) I am NOT against automatic agreements for DISTRIBUTION of copyrighted works. This is something not allowed by default copyright laws, so the onus is on you to find out IF you are even allowed to distribute it or make derivative works.

    I think this is a pretty reasonable stance. There's no need to kill a bunch of trees. The problem isn't the lack of paper and signatures, it's the agreement being sprung upon you AFTER you already have the legal rights to run the software. It's like buying a house and finding a sticker on the door that says "By breaking this seal you agree to the following terms...." No judge in their right mind would stand for such a thing and the standard really should be applied a CDROM, the same as it would be for a book.

    --
    Life is too short to proofread.