the ‘curry case’CC disputes session, iSummit 2006

Paul Keller Creative Commons NL

the ‘curry case’ (a. curry v. audax/Weekend)

• District Court of Amsterdam - decision on 9 march, 2006 Interim measure, Case number 334492 / KG 06-176 S

• English translation available at: mirrors.creativecommons.org/judgements/Curry-Audax-English.pdf

• bought forward by Adam Curry, his wife and daughter (residing in the UK) against Audax, the publisher of the dutch tabloid Weekend and two senior editors

• three lines of argument:

• violation of right of portrait

• privacy violations

• copyright (CC license violation)

the ‘curry case’- the facts

• in issue 3/2006, Weekend used CC-BY-NC-SA 2.0 licensed photos from Adam Curry’s flickr account in a 4-page story about his family life.

• By letter of 20 January 2006 the Curry's counsel demanded from Audax that it cease the sales of Weekend issue 3, that it publish a rectification and pay €10000 as an advance to the damages.

• in issue 4 the following rectification was published: ‘In the previous Weekend issue we drew attention to Adam Curry [...] The publication was accompanied by photographs taken from a virtual photo album on the Internet. We should have requested permission for publication of those photographs. We regret that we failed to do so and would like to apologize to the Curry family.’ Audax also offered €1500 compensation.

arguments brought forward by curry (1)

• Curry owns the copyright on all four photos from www.flickr.com. Weekend has acknowledged this by using the copyright notice.

• In adding the text ‘Photos: ©Adam Curry’ the suggestion is actually made that Curry has given permission for insertion of the photos, which is not the case.

• The photos are published on the website under the conditions laid down in the CC-BY-NC-SA License.

• This is recognizable for every visitor of the website, since the photos are accompanied by the text ‘some rights reserved’.

• The applicability of the License terms follows from the opening lines of the License, which read: "By exercising any rights to the work provided here, you accept and agree to be bound by the terms of this license"

arguments brought forward by curry (2)

• Weekend has not complied with the requirements for using the photos set by the License.

• Article 4 sub c of the License stipulates that the use (of the photos) may not produce any commercial benefits. Weekend is a downright commercial magazine.

• Article 4 sub a of the License stipulates that distribution and public display of a work have to be accompanied by a copy of the License. Weekend has not observed this requirement: every reference to the License is lacking.

• In violating the above requirements Weekend fails to execute the contract to which it was bound.

arguments brought forward by weekend (1)

• Adam Curry has actively sought publicity for years and still hundreds of private pictures of the Curry family are accessible for anyone to see at www.flickr.com.

• The four photos at dispute have been published in Weekend in good faith.

• The statement "This photo is public" put Weekend/Audax under the impression that it had the permission to publish the photos, with the note that the copyright rests with Adam Curry.

• The link to the License is not traceable in an obvious manner. Audax became aware of the License only after notification by Curry's lawyer. Therefore Audax cannot be blamed the violation of the requirements set in the License.

arguments brought forward by weekend (2)

• Weekend's not mentioning the conditions of the License did not cause Curry to suffer any harm at all, as fact that the copyright on the photos rests with Curry has been mentioned.

• Article 4 sub c of the License has not been violated. Weekend's principal reason to publish the photos is not to make a profit but to inform its readers. Audax is entitled to such freedom of expression.

• The non commercial clause seems to be meant to prevent merchandising (e.g. production of picture postcards), not to prevent placement of photos to illustrate news reports.

is weekend bound by the license?

• Adam Curry owns the copyright in the four photos, and the photos, by their posting on that website, are subject to the Creative Commons License.

• Therefore Weekend should observe the conditions that control the use by third parties of the photos as stated in the License

• this confirms that a by exercising any rights granted by the license the user is bound by the conditions

• It may be expected from a professional party that it conducts a thorough and precise examination before publishing photos originating from the internet.

• Had Weekend conducted such an investigation they would have found the CC License. In case of doubt as to the applicability and the contents of the License, it should have requested pemission.

does weekend comply with B by-nc-sa?

• Articles 4 sub a (atibution) and 4 sub c (non-commercial use only) have been violated:

• BY: while Curry is correctly identified as the author/copyright holder, the edition of Weekend at dispute makes no reference whatsoever to the License.

• NC: Audax has violated that provision as well because publication of an entertainment magazine such as Weekend can be regarded first and foremost as a commercial activity.

• the court orders Audax to refrain from further using pictures from Curry's flickr page in ways that are not authorized by the CC licenses (or without authorization om Curry) at pain of a penalty of €1000 of each violation with a maximum of €20000.

damages?

• However, the court does not see any economic damages caused to Curry by Weekends license violations:

• Photos that are already accessible for free for everyone on the internet have no commercial value (anymore)

• Curry has been acknowledged as the copyright holder and the subsequent rectification states that Weekend was wrong not to ask for permission.

• no damages are awarded to Curry

• Because of this a lot of people have the impression that Curry has 'lost' the case, a number of people have concluded that the CC licenses offer no protection against violations as there is no monetary risk for infringers.

• Judge would have hardly found monetary damage in the absence of CC licenses.

issues raised by the case

• licenses do work as a tool that can be used by a court of law

• there is a problem when attempting to enforce monetary compensation in case of license violation (how to quantify SA)

• this case was not really about a license violation but about copyright infringement

• a more interesting case would have been a case where commercial use is allowed and this is then disputed by the licensor.

• (un)clear definition of non-commercial

• fair use anyone?

thank you!

more information at:

http://creativecommons.org/weblog/entry/5944http://creativecommons.org/weblog/entry/5823

this presentation is licensed under the terms of a Creative Commons BY-NC-SA 2.5 license. All photographs by Adam Curry (obviously!). for a copy of the license see: http://creativecommons.org/licenses/by-nc-sa/2.5/