The Creative Commons Attribution-ShareAlike 3.0 Unported license (BY-SA) has been enforced by a judicial injunction in Germany. Legal analysis will be added to our case law database in the coming days. Till Jaeger reported the case (in German; English machine translation) at ifrOSS (Institut für Rechtsfragen der Freien und Open Source Software), where one may also find a PDF scan of the ruling. John Hendrik Weitzmann of CC Germany has provided an English translation of the ruling, below.
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. …
- Proceedings Representatives:
Christinenstraße 18/19, 10119 Berlin,-
represented by its chairman
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.
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.
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 BresinskyNo Comments »
Creative Commons is seeking highly motivated and organized individuals to fill two positions: Senior Project Manager and Senior Project Analyst. Both positions are full-time with full benefits. Both positions will be key members of the team supporting Department of Labor TAACCCT grantees.
Ideal candidates have contributed to open source, open education, open licensing, and/or other open content projects, are proficient in required technologies, and possess at lease two years of work experience. Joining CC means getting the chance to interact with motivated staff and a brilliant international network of affiliates and community members.
Please feel free to share these jobs descriptions as far and wide as possible. We will be accepting applications on a rolling basis until we find the right candidates. Please be sure to indicate the job title you are interested in applying for in the email subject line, and send to “email@example.com”
Application Deadline: Friday, 7 October.No Comments »
Freesound is a collaborative database of nearly 120,000 sounds. We first posted about the project in 2005. Freesound specializes in sounds, not songs, and those sounds have been used thousands of times from ccMixter remixes to a major motion picture.
The project has just launched a complete rewrite of its site, with a new, modern look, and a new, modern codebase that will enable the project to grow and add features over the coming years. Congratulations to Bram and the entire Freesound community! Hop over and get involved.
Freesound 2.0 also brings a long-awaited licensing migration, which the rest of this post delves into. Later in 2005, we interviewed Freesound project leader Bram de Jong:
CC: What led you to mandate use of a CC license for all samples in Freesound?
BdJ: Simply because the creative commons licenses are clear licenses, well thought of, well documented and above all quite modular. We doubted a long time about which license to choose, and in the end decided to go with Sampling+. In retrospect we chose wrong, and we’re planning to ask our users to switch to Attribution/Attribution-NonCommercial, but that’s a bit further in the future.
In 2006 the project started a poll which would inform the eventual license migration:
A large fraction (37%) of the community also wanted a public domain option (and fortunately we launched the CC0 public domain dedication in the interim). The image below shows what the Freesound 2.0 license migration options look like for existing users:
We expect this migration to result in greatly increased use of Freesound-hosted sounds, and of Freesound itself, especially to the extent users choose to migrate to CC0 and CC Attribution — this will be the first time Freesound samples will be available under fully free terms, and thus usable by anyone for any purpose, including massively in massively collaborative projects such as Wikipedia, which insists on such terms.
Creative Commons is taking this opportunity to retire the Sampling+ license, as well as the NonCommercial-Sampling+ license (the latter was not used by Freesound, nor by any major project, and probably should have been retired years ago). For a big picture explanation of why we’re retiring these licenses, and why now, see the following text from an email explaining plans for retirement to the Creative Commons board of directors:
[In 2007] we retired the sampling and devnations licenses due to low usage and failing to permit a minimum of noncommercial verbatim distribution worldwide (retirement means we don’t recommend use for new works and add to http://creativecommons.org/retiredlicenses — the deeds and legalcode stay up forever for anyone already using them).
It is approaching time to retire the sampling+ and nc-sampling+ licenses due to low usage and lack of interoperability with the six main CC licenses. We’ve further come to understand the importance of interoperability and clarity. While niche licenses in theory could attract more creators do the commons by addressing specific needs, they detract from the commons by subdividing it into incompatible pools and making the commons harder to understand.
The only major site using sampling+ (there are none of significance using nc-sampling+) is Freesound, a sound sample repository. Freesound 2.0 will be launched, with CC0 as the recommended option, but also support for BY and BY-NC, and a push to ask contributors to re-license (or dedicate to the public domain) previous uploads. We intend to retire the sampling+ licenses in conjunction with the launch of Freesound 2.0, giving that important community the respect and attention it deserves while at the same time demonstrating our continued rigorous commitment to an interoperable commons.
If you’re interested in even more details concerning why Sampling+ was not right for Freesound, and right for Creative Commons to retire, continue reading…
After the initial suite of 11 CC licenses (cut back to 6 in version 2.0) was launched in late 2002, it wasn’t clear that CC shouldn’t create even more licenses to address particular niches. Those following the free and open source software world knew that “license proliferation” had a bad name, but the world outside software is very diverse, so CC explored, including an education-specific license (never developed, which was just the right thing, as CC’s standard licenses have turned out to work just great for learning materials), a license which only granted broad permissions in the developing world (retired, see link above), and perhaps most interestingly, a remix-only license, at one point briefly be called the Recombo license (a tribute to CC’s popularity in Brazil), in the end launched as the Sampling license.
The Sampling license was on one hand very restrictive — it did not permit any verbatim distribution — a CC license that did not permit simple sharing(!) — but on the other hand, permitted commercial use of licensed works, provided they were used transformatively. In theory, such a license could be very good for the commons. It might encourage conservative entities to license some works in a way that would not sanction their bugaboos such as P2P filesharing, but could ultimately be incorporated into free works through remixing.
Sampling was never widely used, perhaps because lack of allowing verbatim sharing just broke too many use cases — including CC’s. When WIRED did its magnificent issue on CC, featuring prominent artists using the new license to promote remix, not being able to share the verbatim originals would have made a site like ccMixter (launched with the issue) rather unwieldy. So CC created the Sampling+ license, the plus noting that it added permission to share verbatim copies.
However, this process resulted in one of the oddities that made it very hard to remember how Sampling+ worked: it only allowed non-commercial verbatim sharing, but at the same time, it allowed commercial use if transformative. This is one instance in which CC’s practice of developing a simple machine-readable description of its licenses alerted us that something was amiss. The flat CC REL statements permits Distribution and prohibits CommercialUse would not be adequate for describing Sampling+. We were forced to define a new permission, Sharing, which we defined as non-commercial distribution. This allowed us to say Sampling+ permits DerivativeWorks and leave out prohibits CommercialUse, which would be too broad. This exercise wasn’t enough to stop Sampling+, but it did highlight another (in addition to helping computers facilitate discovery and use of licensed works) use case for machine-readable license descriptions — informing the development of licenses (and other legal tools; such an exercise was helpful in defining the scope of the Public Domain Mark) themselves.
Some of the artists (or their management) involved in the WIRED CD did not want to permit any sort of commercial use, thus we created the NonCommercial-Sampling+ license. The WIRED CD and issue and launch of ccMixter were each huge successes and major milestones for CC. However, the Sampling licenses themselves proved to be a nearly instant “legacy” problem. In 2005 ccMixter discouraged their use in favor of CC Attribution and Attribution-NonCommercial and as the interview above shows, Freesound knew that was the right move almost immediately as well. Please read Victor Stone’s delightful ccMixter memoir for a history of that project, including licensing.
For completeness, it’s worth noting a couple other problems the Sampling licenses had, in addition to Sampling’s not allowing verbatim sharing (the reason it was retired in 2007) and Sampling+’s hard to remember commercial/non-commercial mix.
All of the Sampling licenses only allow adaptations that make “partial” and “highly transformative” uses of the original. This caused three sub-problems: (1) for some short works, samples on Freesound in particular, “highly transformative” and (especially) “partial” use potentially severely limits natural uses of the works; (2) these conditions are fairly open to interpretation — had any of the Sampling licenses been very popular, “what is transformative/partial” would be another consuming question, a la non-commercial; and (3) it is not clear just how much the Sampling licenses permitted beyond what one can (or at least ought be able to) do based on copyright exceptions and limitations such as fair use.
Finally, the Sampling and Sampling+ licenses also have a complete prohibition on advertising and promotional use (except for promoting the work and artist themselves), which resulted in four sub-problems: (1) prohibition of such a broad class of uses greatly limits the value of the commercial use permission, and considering “promotional”, even many otherwise non-commercial uses; (2) what constitutes advertising or promotion?; (3) limitation to non-promotional uses accentuates the question above about what is permitted above and beyond default exceptions and limitations; and (4) the Sampling and Sampling+ licenses are not compatible with any of the 6 main CC licenses — one can’t incorporate a work under Sampling or Sampling+ into a work distributed under one of the 6 main CC licenses, as none of them, even those with the NonCommercial term have a complete prohibition on advertising, let alone all promotional uses.
Obviously CC has become much more focused on interoperability since its beginning — we have released no new niche licenses since 2004, and as of today, have retired all of those. Version 4.0 of the main CC licenses will present another opportunity to take a hard look at interoperability, and fix any rough edges we might find, with your help. If you’re interested, please join the discussion virtually or at its kickoff later this month in Warsaw.
If you’ve read this far, now take a break and check out Freesound 2.0.7 Comments »
Earlier this year, we announced that Creative Commons is an official sponsor of the 7th annual WikiSym, the International Symposium on Wikis and Open Collaboration. WikiSym is taking place right near Creative Commons headquarters in Mountain View, CA on October 3-5 at Microsoft Research Campus in Silicon Valley.
WikiSym is the premier conference on open collaboration and related technologies for researchers, industry, entrepreneurs and practitioners worldwide. It is supported by relevant organizations and companies such as Microsoft, Wikimedia Foundation, Creative Commons, the National Science Foundation, and CosmoCode. As an Associate Partner and like-minded organization concerned about the instrumental role of open content and open licenses in today’s society, Creative Commons supports WikiSym to further disseminate the goals of this forum among their audience around the world.
Key topics in WikiSym include open collaboration and related technologies, open content, open licenses and their connections and implications for different areas of interest (education, e-democracy, data transparency and industry). A CC Salon on Open Educational Resources organized in San Francisco in June already served as a preview of some interesting discussions in this field that will be developed at the conference.
The conference program is packed with presentations, workshops, panels, demos and keynotes. Alongside is the Open Space, an unconference track in which attendees can self-organize their own agenda with discussions, presentations and informal gatherings.
This year, WikiSym is proud to host 3 outstanding keynotes by world-renowned figures in their fields.
- Cathy Casserly (CEO @ Creative Commons) will talk about the forthcoming challenges for open content and open licenses, with special emphasis in their implications for the critical field of educational content.
- Jeff Heer (Assistant Professor @ Stanford) will present a tour around the most compelling and innovative advances in information visualization (InfoViz), a field that is evolving rapidly, along with the emergence of open data sources, public transparency and data analysis.
- Bernardo Huberman (Senior HP Fellow and Director of the Social Computing Lab @ Hewlett-Packard Laboratories) will emphasize the implication of the latest advances in the study of virtual communities, distributed systems and dynamics of information in large networks to understand the way open collaboration will likely evolve in the future.
WikiSym 2011 registration is still open. Don’t miss this unparalleled opportunity to tap into the latest trends and ground-breaking advances in open collaboration–the force that is reshaping the way we work, live and interact with each other everyday.
Volunteer at WikiSym 2011!
You can also volunteer to help run WikiSym if you are a student (undergrad, grad, PhD). Volunteers will receive free access to the conference (including meals, reception and dinner) for the entire 3 days. Apply to be a volunteer by September 24!No Comments »
While we gear up for the CC Global Summit that is just a week away, governments around the world continue to open up their data and adopt policies for maximum transparency and citizen engagement.
Open government developments in Austria, New Zealand, and Australia
In Austria, the City of Vienna, along with the Chancellor’s Office and the Austrian cities of Linz, Salzburg and Graz, coordinated their activities to establish the Cooperation OGD (Open Government Data) Austria. In its first session, the group agreed to eight key points, the first of which was, "All public administration will be free under a Creative Commons Attribution License (CC BY 3.0), meaning it can be reused and shared for any purpose, with only attribution necessary.” Read more.
In New Zealand, the Ministers of Finance and Internal Affairs adopted a statement detailing a new Declaration on Open and Transparent Government that directs, encourages, and invites various departments, state services agencies, and state sector agencies to commit to releasing high value public data actively for re-use, in accordance with the Declaration and Principles, and in accordance with the NZGOAL Review and Release process. Read more.
In Australia, AusGOAL, the nationally endorsed Australian Governments Open Access and Licensing Framework, recommends the suite of CC licenses for copyrighted material and the CC Public Domain Mark for non-copyrighted material. Read more. CC Korea also recently translated the excellent Australia Gov 2.0 Taskforce Report to further open government in their own region.
In other news:
- $20,000 is available via the Open Textbook Challenge by the Saylor Foundation. If a textbook is submitted and accepted for use with Saylor.org's course materials, then the copyright holders receive $20,000 while the referrer receives $250.
- Our affiliates in Europe have published a new dossier on the EU sound recording copyright extension.
- We also filed brief comments for the EC consultation on scientific information in the digital age.
- In response to the Moore Foundation's call for community feedback, we developed this idea on Data Governance. We hope you participate and vote, and not just on our idea — participation in processes like this is a great way to increase their usage by foundations in making funding choices that can benefit the commons.
- The Technical Working Group is underway for the Learning Metadata Resource Initiative (LRMI). EdTechMag recently covered LRMI in this great article. To learn more, sign up for the first in a series of webinars on LRMI.
- We documented the present state of CC licensing options in a summary on CC Labs.
- And we updated our Kickstarter page with a couple new CC licensed projects seeking sustenance. Check it out, and let us know if you are using CC for a project with an upcoming deadline.
The Association of Educational Publishers (AEP) and Creative Commons are hosting a webinar to introduce publishers, content developers, educators, and the general public to the Learning Metadata Resource Initiative (LRMI). Many of you read about its launch in June, and maybe even saw that the Technical Working Group had been finalized and is starting work. This webinar is the first in a series of webinars on the LRMI, and is a chance for you to get your questions answered directly. Official description:
Metadata Tagging in Education – What Every Publisher and Content Developer Needs to Know
Join AEP and Creative Commons to learn about the effort to establish a common vocabulary for describing learning resources. This webinar will review the background of the Learning Resource Metadata Initiative, the roles of the organizations involved, and the goals for this major initiative. As a framework is created and then adopted by publishers and content developers, many opportunities lie ahead. Weigh in, ask your questions, voice your concerns, and help us keep the dialogue moving forward. The Learning Resource Metadata Initiative will have a valuable impact on the way educators search for and use online educational material.
The webinar will occur on Friday, September 23, 2011 at 2:00-3:00 PM U.S. EDT. Register now!3 Comments »
Two of the main Polish acts for the Global Summit CC Salon (a musical concert) are encouraging remixes of their tracks under CC BY-NC-SA. A couple sample tracks have been uploaded to ccMixter.org, under users “masala” and “axmusique.”
Masala is a music fusion collective whose genre can only be determined as ethno-electro-ragga-punk-hip-hop, which is famous for combining Asian music with electronics. Masala wants you to remix Rewolucja w nas at ccMixter.
AXMusique is an unusual producer duo who earned the affection of fans and publishers with powerful concerts mixing electronic and rock-and-roll music. AXMusique wants you to remix Hardline at ccMixter.
Both musical groups will choose their favorite remixes, which will be played at the CC Salon with names of the remixers projected by VJs. For more info on the CC Salon and other cultural events at the Global Summit, see the Global Summit Cultural Events program.2 Comments »
Creative Commons was launched in the aftermath of a retroactive copyright term extension in the U.S. and during a challenge to that extension, a challenge that economist Milton Friedman called a no brainer — a retroactive term extension cannot possibly incent the creation of new works, while at the same time it must rob the public domain.
Since its launch in 2002, Creative Commons has made tremendous strides in fostering the commons. In the last few years, policymakers have increasingly seen the value of making commons a default, e.g., where public information or public interest funding is involved. However, new retroactive copyright term extensions show that public policy continues to be far removed from the public interest — as is the case now with sound recording in the European Union.
The following text is by John Hendrik Weitzmann, Legal Project Lead of Creative Commons Germany and co-author of a new dossier on the EU sound recording copyright extension.
This week and next week will bring defining moments in European copyright policy. The efforts to retrospectively extend the term for related rights in sound recordings to 70 years, halted since 2009 by not finding the necessary majority in the Council of the EU, will probably be approved by the Committee of Permanent Representatives (COREPER) in Brussels tomorrow.
COREPER prepares the Council’s meeting on Sept 12th, which will without much doubt follow COREPERs preparation and pass the term extension. It will then become EU law even though both, the EU Commission that made the proposal and the EU Parliament that amended and passed it, are no longer in office.
The recent developments have largely been behind closed doors, until Denmark, Portugal and Finland indicated earlier this year that they would no longer oppose the extension. Now the proposal is being pushed to the Council again in an up-speed process.
As the most renowned copyright scholars from Cambridge to Amsterdam and Munich have pointed out again and again, such an extension will severely hurt Europe’s cultural diversity, its innovative potential and the preservation of its cultural heritage. All this in order to help four international corporations to squeeze marginal extra revenue from a fraction of the recordings of the 20th century (the 60s). The session musicians, being the group that the extension move purportedly is meant to support, are going to at best receive between 1 and 2 percent of the cake, extremely biased towards already highly successful artists like Sir Cliff Richard, a tireless campaigner for term extension. This prospect has been proven through economical and legal analysis. Academia has told the EU Commission about this in independent studies, has told the public in the Bournemouth Declaration and the Joint Academic Statement on Term Extension.
To no avail, the only ever reaction was discernible when the EU Parliament in 2009 lowered the Commission proposal’s 95 year term to 70 years and added some side provisions to counter the rights holders dominance in favour of artists. These provisions are well-meant but will not solve the distribution problem, as again was proven by academic experts. Above that, these provisions being added is ‘sold’ to the European public as being possible only if the term extension is passed. This is false. For example, as the Joint Academic Statement points out, the so called use-it-or-lose-it provision is a regular part of the German copyright code since decades ago and was introduced without any connection to a retrospective term extension.
With support by the Wikimedia Foundation, iRights.info has now compiled (blog post in German) a “Dossier on Term Extension for Related Rights in Sound Recordings”. It explains background, timeline and arguments made around the extension plans and is available in German and English.
A broad coverage of what is happening is needed all across Europe. The dossier can be sent around and built upon, it is licensed under CC BY 3.0 Germany and any re-use is highly appreciated.4 Comments »
The Saylor Foundation has been known for organizing comprehensive curriculum for popular subject areas, and licensing the resources when they can under the CC Attribution license. Now with the launch of its Open Textbook Challenge, the Saylor Foundation aims to expand the amount of high-quality CC BY-licensed course materials by offering a $20,000 award for open textbooks! If a textbook is submitted and accepted for use with Saylor.org‘s course materials, then the copyright owners receive $20,000 while the referrer receives $250. Then the textbook is re-licensed (if not already) for free and open use under CC BY. For more information, visit http://www.saylor.org/OTC. The deadline is November 1, 2011.
To submit a textbook with Creative Commons as the referrer, go to http://www.saylor.org/otc-form/?refcode=6.1 Comment »
The Creative Commons Global Summit Poster Competition has been a huge success, with 38 entries from around the world!
We thank each and every one of you who submitted a design and participated in the voting process. Three winning designs were chosen based on popular vote and by a panel of judges from our CC Poland team (with a little help from other international affiliates).
The popular vote winner was:
Meanwhile, our Polish judges came up with a tie – so we decided to award two judges prizes:
Each poster will be printed and featured prominently at the lovely Primates Palace in Warsaw for our Global Summit, to be held from September 16-18. The posters will also be displayed as part of a digital CC visual arts exhibit at the venue.
Congratulations to the designers, and thanks to all of you who participated!No Comments »