legal

A Global, Pro Bono Week Tribute

Diane Peters, October 22nd, 2012

Universal Thank You Note

Universal Thank You Note / woodleywonderworks / CC BY

This week is Pro Bono Week in the United States. We wish to take this opportunity to thank the many talented legal professionals on whom we count for impeccable, cutting-edge advice around the world on an array of issues, all on a volunteer basis.

CC leverages pro bono legal expertise on a number of important projects. For example, almost exactly one year ago, Creative Commons formally embarked on the versioning of our license suite. This is one of the most important responsibilities we have as the steward of licenses relied upon by creators to share an estimated one-half billion works on the Internet (and counting). As with the development of the past four license versions, this undertaking involves major policy decisions, complicated questions of international, regional and jurisdiction-specific law, and ambitious goals. Those include internationalization, compatibility, licensing of database rights in Europe and elsewhere, and anticipating future impediments to sharing that take the form of paracopyrights, such as technical protection measures and other copyright-like rights.

The issue of internationalization alone benefitted greatly from multiple efforts: a law firm with international reach provided detailed research on license formalities under both common law and civil law copyright systems; database experts within our affiliate network responded to our inquiries on the details of licensing sui generis database rights in a way that would not have adversely impacted people in countries where those rights do not exist; and a law firm with offices in Asia and Europe provided detailed research on effective technological measures around the world.

The support CC receives in the form of pro bono services extends deep within the organization itself in equally important but less visible ways. This includes the legal expertise required to maintain a strong, compliant tax-exempt organization, upkeep and outreach involving our current licenses and public domain tools, working with affiliated organizations in more than 70 countries, and supporting intricate policy work that consistently pushes the envelope on public domain policy, education and open access initiatives, and science and data, to name just a few.

Here at Creative Commons, we find ourselves in the privileged and fortunate position of working daily with an impressive array of legal experts around the globe who lend insights, legal acumen, and depth of perspective to every dimension of our legal work. This effort and dedication in the aggregate makes our vision and reach possible, and our legal products among the most trusted, respected and robust of any offered. More amazingly still, the large majority of these experts provide assistance free of charge.

We count many among this amazing group:

We extend our sincerest gratitude to all of those — both current and past — who have provided Creative Commons with volunteer legal assistance. As a direct consequence of this assistance, CC as well as our community of affiliates and adopters are all in the strongest position possible to maximize digital creativity, sharing, and innovation.

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Internet Brands and Wikimedia: BY-SA Withstands Scrutiny

Diane Peters, September 19th, 2012

Yelabuga Medieval Tower
Yelabuga Medieval Tower / Ерней / Public Domain, via Wikimedia Commons

Every day, millions of people rely on CC licenses for all manner of sharing, from merely redistributing recordings or using images found on Flickr in presentations, to leveraging massive collaborative works developed on wikis in educational settings. All of this normally happens very quietly and without fuss or exception, so long as simple license conditions are respected and those involved have no other reason for complaint. But the exceptional (rare, that is) conflict proves the simple rule that CC licenses operate as designed and as advertised: disregard the license conditions and copyright is at issue; follow the conditions and copyright is not.

As an example of the former, almost exactly a year ago we announced that the Creative Commons Attribution ShareAlike (BY-SA) license had been successfully enforced in a case in Germany. There, a far-right political party had used a photo under BY-SA without providing proper attribution to the author and other information required by the license. The photographer sued to enforce the license, and the district court of Berlin agreed and issued an injunction against the user.

As an example of the latter, members of the Wikitravel community (together with many who left long ago to found Wikivoyage) recently announced plans to migrate to a new travel project hosted by the Wikimedia Foundation (meaning a new sibling project alongside Wiktionary, Wikibooks, Wikisource, Wikipedia and others). All of these sites use BY-SA, which enables the reuse of content among those sites even when conflicts arise or differences of opinion exist about website administration or community management, for example. Indeed, BY-SA was designed precisely to enable this kind of reuse and repurposing of content. In this particular instance, Internet Brands, which currently runs WikiTravel, sued (PDF) two Wikitravel volunteers for trademark infringement, unfair business practices and conspiracy, and seeks a court order enjoining them generally from doing anything that misleads the public into believing the new website is affiliated with Wikitravel, among other things.

Wikimedia Foundation decided to support those volunteers (who are also Wikimedia volunteers) in their legal defense, and in its blog post explained that it did not think it appropriate for Internet Brands to attempt to intimidate the volunteers from communicating freely on their dissatisfaction with IB’s management of the Wikitravel community. As a result, Wikimedia Foundation filed a separate request for declaratory judgment (PDF) seeking a declaration that, “under the terms of the CC License, [Internet Brands] may not restrict the use, reproduction, sale, or modification of content on the Wikitravel website in any manner other than requiring attribution to the creator of the content and that the content be maintained under the same licensing terms”. In addition, the Foundation argues that “[Internet Brands] has no lawful right, title or interest under the CC License to prevent use of such content created by volunteer users and administrators on the Wikitravel website”.

A few claims in the dispute provide the opportunity to highlight some important features of BY-SA and the other CC licenses. First, all CC 3.0 licenses contain mechanisms that protect licensors wanting to distance themselves from the projects and individuals reusing the CC-licensed content in ways allowed by the license, for any reason whatsoever. Our licenses contain a “no endorsement, no sponsorship” clause that prohibits users from implicitly or explicitly asserting or implying “any connection with, sponsorship or endorsement by” the author, the licensor or others to whom attribution is being provided, either for the licensee herself or the work as reused. Additionally, anyone modifying content (when allowed by the license, as BY-SA does) must clearly label or identify that changes have been made, thereby ensuring modifications are not wrongly associated with the original author. Finally, where the original author or licensor wants to completely disassociate themselves from particular reuses, they have the right to request that all attribution and mention of them be removed, and those reusing the work must do so to the extent practicable. These mechanisms provide effective tools for those concerned about being affiliated with permitted reuses of their works.

Second, an assertion in the dispute relates to whether proper attribution has been provided. While the factual underpinnings of this claim are not provided in the court filings and it does not appear the content is question is being used at this time, it’s worth mention that Creative Commons tools provide a sophisticated yet flexible method for reusers to provide proper attribution. All CC licenses permit attribution to be provided in a manner “reasonable to the medium or means” used by the licensee, and for credit to be provided in a “reasonable manner.” This flexibility facilitates compliance by licensees – minimizing the risk that overly onerous and inflexible attribution requirements are simply disregarded as being too difficult – while at the same ensuring that credit is still provided. This makes it easy for reusers to “do the right thing.”

Whatever the decision the court makes regarding the other claims by Internet Brands against the Wikitravel volunteers, it is clear that under the terms of BY-SA, the Wikitravel content can and should be used on other websites, so long as the users comply with the requirements of the license.

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Creative Commons Attribution-ShareAlike license enforced in Germany

Mike Linksvayer, September 15th, 2011

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
Thilo Sarrazin am 3. Juli 2009 by Nina Gerlach / CC BY-SA
The 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

Key

ZPO is the civil proceedings act,
UrhG is the Urheberrechtsgesetz (copyright act),
BGH is the Federal Supreme Court,
KG is the Berlin Supreme Court,
GRUR, NJW and WRP are journals,
to “credibly show” something is roughly to establish prima facie evidence.

Translation and key provided by John Hendrik Weitzmann

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

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Response to ASCAP’s deceptive claims

Eric Steuer, June 30th, 2010

Last week, the American Society of Composers, Authors and Publishers (ASCAP) sent a fundraising letter to its members calling on them to fight “opponents” such as Creative Commons, falsely claiming that we work to undermine copyright.*

Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Many musicians, including acts like Nine Inch Nails, Beastie Boys, Youssou N’Dour, Tone, Curt Smith, David Byrne, Radiohead, Yunyu, Kristin Hersh, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren’t looking to stop making money from their music. In fact, many of the artists who use CC licenses are also members of collecting societies, including ASCAP. That’s how we first heard about this smear campaign – many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons.

If you are similarly angered by ASCAP’s deceptive tactics, I’m hoping that you can help us by donating to Creative Commons – and sending a message – at this critical time. We don’t have lobbyists on the payroll, but with your support we can continue working hard on behalf of creators and consumers alike.

Sincerely,
Eric Steuer
Creative Director, Creative Commons

* For background on ASCAP’s anti-Creative Commons fundraising campaign, see Boing Boing, Techdirt, ZeroPaid, and Wired.

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Back to School: Legal Challenges for Teachers (Sharing Patient Health Data)

Lila Bailey, September 3rd, 2009

As students around the world return to school, ccLearn blogs about the evolving education landscape, ongoing projects to improve educational resources, education technology, and the future of education. Browse the “Back to School” tag for more posts in this series.

For this post in my Legal Challenges for Teachers series, I will focus on challenges for medical education. Although copyright issues are a problem for medical education as in any other educational area, those who educate and train doctors face many additional hurdles.

According to Open University,

Ethiopia has a population of 84 million people served by fewer than 1800 doctors, most of these in private practice. People are suffering and dying because they cannot get access to a doctor when they need one.

To combat this problem, the Ethiopian government is planning to create 11 new medical schools and 8000 new places for medical students to obtain training. Open University is working with the Ministry of Health in Ethiopia to pilot open and distance learning medical training with students at the recently opened St Paul’s Millennium Medical School in Addis Ababa.

Given the desperate need for new doctors in Africa and around the world, and the distinct lack of trained doctors to teach them, many medical education programs are turning to digital technologies and distance learning for innovative means of educating new doctors. One interesting model being used is the Virtual Patient (VP). VPs are interactive computer simulations of real-life clinical scenarios, and may consist of many learning objects (e.g., text, images, animations, and videos). VPs are becoming recognized as highly effective training tools.

Yet while the use of distance education, such as via Open University, and digital technologies, such as VPs, have the potential to vastly expand the number of doctors with access to quality clinical training resources, it is not without its own challenges. Access to information about real life patients is necessary to develop VPs and other effective clinical training resources. VPs are very time-consuming and expensive to develop, so it is necessary to be able to share existing VPs in a manner that is adaptable to different cultural, linguistic and educational scenarios. Therefore, a prerequisite to the success of these projects is the ability to actually share and reuse the relevant digital content (i.e., the patient information). However, sharing data about patients is subject to numerous laws and regulations, including considerations of confidentiality, patient privacy and protection and control over patient data. This makes sharing data between institutions quite difficult, and even more so when the institutions are located in different countries having different legal requirements.

The Electronic Virtual Patient, or eViPs, program is a collaboration between nine universities across Northern Europe and MedBiquitious, which helped to develop the technical standards used in e-based healthcare education. eViPs has managed to compile a repository of 320 VPs which will soon be made available under a Creative Commons license. In order to share the health data that was used in the development of the VPs contained in the repository, full consent of the participating patients had to be obtained, as detailed in this report. It is wonderful to see collaborations such as this one that have been able to meet the challenges particular to sharing patient health data.

Unfortunately, the ability to share patient health data is still limited to specific projects and institutions. I wonder whether it is possible to develop even more robust legal tools that will allow medical educators to share patient data across projects and across borders, while still maintaining appropriate patient confidentiality. Many lives depend on our ability to do so.

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Back to School: Legal Challenges for Teachers (Understanding Copyright Exceptions)

Lila Bailey, September 1st, 2009

As students around the world return to school, ccLearn blogs about the evolving education landscape, ongoing projects to improve educational resources, education technology, and the future of education. Browse the “Back to School” tag for more posts in this series.

As part of our ongoing blogging for “Back to School” week here in the United States, I will be blogging about legal challenges facing teachers who wish to harness powerful new digital technologies to enhance students’ learning experiences through OER. In this series, I will explore these challenges in the context of a few specific efforts to reduce the legal barriers to engaging in open education.

Two weeks ago, I attended the international Open Education Conference for the first time. For four days, Vancouver was abuzz with excitement over the latest and greatest in “open.” What was striking to me as a lawyer was the confusion, and in some cases even fear, expressed during conversations about certain open educational activities–especially about the legalities involved.

The first issue I will address in this series is one that has plagued teachers even before the digital era–the inclusion of all-rights-reserved content in teaching materials under an exception to copyright law, such as fair use or fair dealing. From the photocopier to the VCR to the Web, technology has made it easier and easier to make very low-cost or even completely free copies of educational content for the benefit of students. However, teachers may not be aware of, or may fear, the legal implications of making those copies, adapting them to their own circumstances, and using them for teaching. No one wants to turn teachers (or students) into criminals, yet these days the message educators and administrators are getting from rights holders is that digital technologies are doing just that.

The confusion (and the associated legal risk) that comes along with using all-rights-reserved content becomes greater when those materials are placed on the Internet in the context of educational resources that are licensed for widespread sharing and reuse. Further, the cross border use of openly licensed resources that contain all-rights-reserved material creates problems for the overall openness of the resource, because copyright exceptions around the globe are not equivalent or even compatible. As a result, the cost to potential users of determining whether such material may be used in their own jurisdiction presents a barrier to the use of OER.

Gaining a deeper understanding of the ways in which copyright exceptions function globally and how these exceptions interact with open licensing is an important move for the OER community, and one ccLearn hopes to lead the way on. At the OpenEd conference, I presented a paper, titled “Otherwise Open: Managing Incompatible Content in OER,” which outlines this problem in detail. The final published version of that paper is now available here. I encourage you all to take a look at the paper and provide feedback about the paper or your own experiences with this issue.

And, as we blogged a few weeks ago, ccLearn has been working with Open.Michigan on an OER Copyright Survey to gather information about how copyright law may act as a barrier to the creation and dissemination of OER. The initial “test phase” of data gathering is now over, and we are happy to report that we have received many more responses than we anticipated. Keep an eye out for our forthcoming report on the results of this initial survey, and for news on our efforts to internationalize the study.


A summary in Spanish:

ccLearn está de regreso al colegio

En Estados Unidos están de regreso al colegio este mes y con este contexto en ccLearn, Lila Bailey ha venido publicando una serie de entradas que creo justifica comentar y traducir al menos en parte:

De regreso al colegio: Retos legales para los docentes (entendiendo las excepciones legales) http://creativecommons.org/weblog/entry/17240.

Aunque el contexto legal de los régimenes de Copyright (en USA) y Derechos de Autor (en España, en Colombia y en casi toda América Latina) no es igual, de hecho una de las diferencias es la forma como se maneja este tema, me sorprendíó lo “internacional” de este texto, les traduzco apartes:

“De la fotocopiadora al vídeo en la Web, la tecnología ha hecho más y más fácil hacer a muy bajo costo o incluso completamente gratis copias de contenidos educativos para el beneficio de los estudiantes. Sin embargo, los docentes pueden no ser conscientes de ello, o pueden temer las consecuencias jurídicas de realizar tales copias, de adaptárlas a sus propias circunstancias, o de usarlas para la enseñanza. Por su parte nadie quiere criminalizar a los profesores (o los estudiantes), sin embargo, en estos días el mensaje que los docentes y administradores del sistema educativo están recibiendo de los titulares de los derechos de autor es que las tecnologías digitales producen justamente eso.

La confusión (y el riesgo legal asociado) que viene junto con el uso de contenido con “todos los derechos reservados” se hace mayor cuando los materiales se colocan en la Internet en el contexto de los recursos educativos que tienen licencia para un amplio intercambio y la reutilización. Además, la utilización transfronteriza de recursos con licencias abiertas que contienen materiales con “todos los derechos reservados” crea problemas para la idea de apertura general de los recursos, porque las excepciones al derecho de autor en todo el mundo no son equivalentes o compatibles. Como resultado, el costo para los usuarios potenciales de determinar si ese material puede ser utilizado en su propia jurisdicción supone una barrera para el uso de los REA.”

Precisamente Lila Bailey ha venido trabajando el tema buscando entender la forma como las excepciones legales funcionan globalmente y cómo interactúan con otras licencias de contenido abierto, sus ideas se han condensado en la ponencia que presentó durante la conferencia Oponed “Otherwise Open: Managing Incompatible Content in OER”. Un texto que debemos empezar a revisar y ubicar desde nuestros propios contextos.

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ccLearn Welcomes New Counsel

Jane Park, November 13th, 2008

ccLearn welcomes its very first legal counsel, Lila Bailey, who will join our current team of two in February of next year. We have been seeking a counsel for months, and though the process has been long, it has been thorough and patient. We feel confident that we have found an excellent match in Lila, who fulfills the necessary qualifications and also brings a vitality and passion to her forthcoming role as an advocate and counsel for open education.

Lila will join our San Francisco office from Wilson Sonsini Goodrich & Rosati, where she practices Internet-related litigation and counseling, with a particular focus on novel copyright and privacy issues. Lila has also worked with the Electronic Frontier Foundation (EFF) where she was an Intellectual Property Fellow in 2007. She earned her Juris Doctor at the University of California, Berkeley School of Law (Boalt Hall) after graduating from Brown University with a BA in Philosophy.

With the busyness of the holidays ahead, we are delighted to head into the new year with Lila committed to our team.

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ccLearn Counsel and Assistant Director

Jane Park, June 24th, 2008

ccLearn is seeking to fill a new position! Currently, we want someone who will help us in minimizing the legal barriers that stand in the way of open education. However, the new ccLearn Counsel and Assistant Director will not only work on the legal side of things;

“instead,this position will consist of substantial communications (written and verbal, formal and informal), networking and engagement with a diverse communities of interest, strategic planning regarding pursuits of greatest impact for ccLearn, and close collaboration on a variety of related initiatives with the ccLearn and CC staff. In addition, we have access to great intellectual and legal resources associated with our organization which can be leveraged as necessary. It is expected that the candidate for this position will play a significant role in helping ccLearn to achieve its global mission, and will serve as a primary spokesperson for ccLearn and the open education movement generally.”

To learn more or apply, see our Opportunities page!

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