Thilo Sarrazin am 3. Juli 2009 by Nina Gerlach / CC BY-SAThe photo at left was used without providing attribution to the photographer and without providing notice of the license used, both core requirements of all CC licenses. This is an exciting ruling for CC, as the attribution and notice requirements are very clearly stated and upheld.

Additionally, we have been permitted to reveal that the defendant was a far-right party. This is somewhat ironic, given that an occasional objection to using a CC license is that one’s work could be exploited by Nazis (or other extremely objectionable parties). Of course the defendants could have correctly complied with the license (if they were smart and diligent enough), but then CC licenses contain further protections for reputation and integrity.

The photographer and plaintiff, Nina Gerlach, is an active editor of German Wikipedia and other Wikimedia projects (all of which use BY-SA as their default license), and a member of Wikimedia Germany, where her spouse, Mathias Schindler is employed. The case was handled by Till Jaeger (who wrote about the case at ifrOSS, see above), a partner at the law firm JBB and a widely recognized expert in open licenses.

Gerlach said “I wanted to support the concept of free licenses that give permission for everybody to use content but come with a set of requirements, such as attribution.” She will donate any damages awarded by the court if there is money left in the end, and has already donated 100 euro to a project that created public domain and freely licensed songbooks for kindergartens.

Creative Commons is once again pleased that among millions of uses of its licenses, the courts are rarely involved — the licenses allow licensors and licensees to easily avoid transaction costs, let alone the costs of court. We are equally pleased that when a case involving a CC license is taken to court, whether to uphold the rights of the licensor (as in this case) or the licensee, that courts have held that the licenses are enforceable copyright licenses as one would expect.

English translation of ruling

PRELIMINARY INJUNCTION RULING

In the preliminary injunction matter

of Ms. …
Applicant,

- Proceedings Representatives:
JBB Lawyers,
Christinenstraße 18/19, 10119 Berlin,-

against

the …
represented by its chairman
Defendant,

it is commanded by way of preliminary injunction, due to special exigency without oral hearing, according to s. 935 ff., 91 ZPO:

1. The Defendant is, in order to avoid a penalty to be ordained by the Court for every case of non-compliance of up to 250.000,00 EUR, alternatively arrest for disobedience to court orders, or an arrest of up to six months, the latter to be executed in the person of the party chairman, prohibited, to reproduce and/or make publicly available the following photo without naming the creator and adding the license text or its full internet address corresponding to the license terms of the Creative Commons license “Attribution ShareAlike 3.0 Unported”:

[photo of Thilo Sarrazin]

2. The Defendant has to bear the costs of the proceedings.

3. The proceedings value is set to 4.000,00 EUR.

Rationale:

I.
The Applicant has credibly shown the following:

She has created the photo mentioned in the decision and released it for further use under the terms of the so-called Creative Commons license “Attribution ShareAlike 3.0 Unported”. According to these terms, in case of use the creator must be named and there must be either a copy of the license text attached or the full internet address in the form of the Uniform Resource Identifier must be provided. The Defendant published the photo on its website under the address www.die-rechte.info without giving the aforementioned information. The applicant first took notice of the publication on September 9th 2010.

II.
This triggers the urgent entitlement to injunctive relief according to s. 97 ss. 1 in combination with s. 19a UrhG.

The photo enjoys copyright protection as a photographic work in the meaning of s. 2 ss. 1 No. 5 UrhG or as a photograph in the meaning of s. 72 UrhG. As the Defendant put the photo on its website while in breach of the aforementioned license terms, this constituted a use not covered by the permission of the Applicant and thus an unlawful use in the meaning of s. 97 ss. 1 UrhG.

The risk of recurrent infringement as a prerequisite for the entitlement follows from the occurrence of the breach; the risk could have been dispelled only by a declaration under penalty of law to cease and desist (BGH GRUR 1985, 155, 156 = NJW 1985, 191, 191 – Penalty up to … ! – mentioning further sources).

A preliminary ruling seems also “necessary” in the meaning of s. 940 ZPO, because the Applicant cannot be expected to tolerate a possible further infringement of her rights until main proceedings are run.

The set value of the proceedings equals two thirds of the value of the main proceedings (see KG WRP 2005, 368, 369).

Dr. Scholz Klinger von Bresinsky

The images, part of the German Photo Collection at Saxony’s State and University Library (SLUB), are being uploaded with corresponding captions and metadata. Afterward, volunteers will link the photos, all available under Germany’s ported CC BY-SA 3.0 license or in the public domain, to personal identification data and relevant Wikipedia articles. The collection depicts scenes from German history and daily life.

As a bonus for the donating library, the metadata supplied by the German Photo Collection will be expanded and annotated by Wikipedia users, and the results will be seeded back into the collection’s database.

The donation marks the first step in a collaboration between SLUB and Wikimedia Germany e.V., the pioneering Wikimedia chapter who faciliated a similar 100,000-image-strong cooperation with the German Federal Archives last December.

“Fotothek df n-06 0000031.jpg” by Eugen Nosko,  provided to Wikimedia Commons by the Deutsche Fotothek of the Saxon State Library (SLUB) as part of a cooperation project. The file is licensed under Creative Commons Attribution ShareAlike 3.0 Germany License.

It is our hope that the office share will build bridges across projects, people, and resources. As reported last month, the Wikimedia/Wikipedia community is now deciding whether to offer wiki content under CC BY-SA 3.0. These discussions follow the Free Software Foundation’s release of version 1.3 of its Free Documentation License containing language which allows FDL-licensed wikis to republish FDL content under the CC Attribution-ShareAlike license until August 1, 2009.

Read more about the move in our press release.

100,000 Attribution-ShareAlike Images for Wikimedia Commons

Good news reaches another Wikimedia project, Wikimedia Commons, which hosts hundreds of thousands of freely licensed Creative Commons media and serves as the multimedia back-end of Wikipedia. Everyone is encouraged to upload as much educational free media as they can in order to benefit the commons, and this is exactly what the German Federal Archive has decided to do.

Since December 4th, the archive is uploading around 100,000 photos to Wikimedia Commons, all licensed under our Attribution-ShareAlike license. The subject matter varies from not-so-ordinary street scenes to famous German sights, but all of the photos are high quality and offer great snapshots of modern German history. Check out the contributions from BArchBot to keep an eye as the uploads progress over the next couple of weeks.

A very warm congratulations to our new office mates, Wikimedia Germany, and to the German Federal Archive for organizing such a significant and valuable contribution to the commons!

Image: “Schwerin, Neujahr, Feuerwerk” by Ralf Pätzold, made available under a Creative Commons Attribution-ShareAlike 3.0 Germany License by the Deutsches Bundesarchiv (German Federal Archive), Bild 183-Z1228-001.