Creative Commons License Upheld by Dutch Court

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."

I don't understand something...

[idontgno]

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.

Not so fast

[nietsch]

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.

The lesson here

[ortholattice]

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.

Re:I don't understand something...

[dwandy]

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...

Re:I don't understand something...

[bentcd]

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.

Re:Licenses without signed contracts

[theLOUDroom]

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.