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 »
Since Creative Commons Russia was initiated in March of last year, our Russian Affiliates have been working to make the CC licenses compatible with Russian law. Here, we give an overview of CC progress in Russia to date, while also celebrating the recent contribution of valued wartime images to Wikimedia Commons by Russian news agency RIA Novosti as part of the “Eternal Values” Project.
Recruits leaving for the front during mobilization, Moscow. by RIA Novosti archive, image #662733 / Anatoliy Garanin / CC BY-SA 3.0
Currently, certain provisions of Part IV of the Civil Code of the Russian Federation do not permit authors to voluntarily grant copyright permissions. Thanks to work by CC Russia, the Council on Codification and Improvement of the Civil Legislation under the President of the Russian Federation is considering proposed revisions to Part IV of the Civil Code, which will facilitate introduction and use of CC licenses in Russia.
Our Affiliates in Russia believe that use of CC licenses will positively influence the socioeconomic and innovative development of the country, stimulating growth of open content as well as broadening public access to it. The proposed amendments are strongly supported by Russian President Dmitry Medvedev, who gave instructions to prepare the legislative amendments to the Civil Code late last year. Medvedev wants the existing framework to be adjusted to reflect not only the interests of copyright owners, but also the needs of the users.
It is important to note, however, that the matter is less complicated for Russian creators who want to share their works with the rest of the world. Syb Groeneveld, a past CC volunteer in Russia notes, “Every CC license is intended to be effective on a worldwide basis, whether “ported” to a specific jurisdiction or not… CC’s Unported licenses were created using standard terms from the Berne Convention for the Protection of Literary and Artistic Works and other international treaties related to copyright and intellectual property… If you are the author and the copyright holder of a specific work, it is safe to publish something under the unported CC license. In fact, this is what many Russian musicians like Timur Izhbulatov and Melnar Tilromen are already doing at websites like www.Jamendo.com.”
The foremost example of a Russian creator sharing his works is perhaps the Russian President himself; his presidential website, www.kremlin.ru, is licensed under the CC Attribution 3.0 Unported license in an official letter to Wikipedia.
President Medvedev also uploaded the above 100th image of the “Eternal Values” project to Wikimedia Commons under the CC BY-SA license. The “Eternal Values” project celebrates the 70th anniversary of RIA Novosti by releasing the most valued images from its archives to the public.1 Comment »
Slightly less than a year ago the count of CC-licensed images at Flickr surpassed 100 million. Over 35 million have been added since then. Now is a good time to look at changes over the last four years (for which we have data), in particular changes in the distribution of licenses used. We’ve heard many anecdotes about photographers switching to more liberal licensing after getting comfortable with and experiencing the benefits of limited sharing, and wanting more. Are these anecdotes borne out in aggregate?
First, the overwhelming trend is simply more CC-licensed images — an increase from 10 million to 135 million over four years — and we amusingly said 5 years ago that Flickr’s CC area had “gone way beyond our expectations” with 1.5 million licensed images.
The following table summarizes changes in CC licensed images over the past four years. With over 10-fold growth, use of all licenses have increased greatly. However, the distribution has also changed, though slowly. Four years ago 78% of CC-licensed images on Flickr were not pre-cleared for commercial use. This has declined by close to 5 percentage points.
|license||2006-03-17||2010-02-25||2006-03-17||2010-02-25||% point change|
Another way to look at change in license distribution is the share of licenses that permit both commercial use and derivative works — licenses that meet the requirements of the definition of free cultural works, a test used, for example, by Wikimedia Commons, the image and other media repository for Wikipedia. The graph below shows this share over the past four years.
A slightly different approach which reveals the same overall trend is to rank licenses according to the permissions they grant and assign an overall “freedom score” based on the mix of licenses used (a higher score means more permissions are granted on average). This approach was developed by Giorgos Cheliotis in a paper looking at the adoption CC ported jurisdiction licenses (pdf). The following graph shows the “freedom score” of the mix of licenses used at Flickr over the past four years.
What are the underlying causes of these trends? The CC licensing interface on Flickr has not changed significantly, presumably borne out by steady growth of CC licensed images over the years. What is causing the slow increase in permissiveness of those posting images on Flickr under CC licenses? Even more curiously, what caused their temporary decrease in permissiveness from the fall of 2006 through the spring of 2007?
Perhaps the steady increase in permissiveness since then has something to do with Wikimedia Commons’ success and its coming to the attention of photographers as an important publicity mechanism — recalling that Wikimedia Commons requires liberal licensing. However, this is mere conjecture. Can you think of other possible causes and more importantly means to analyze the impact of possible causes?
While the data for CC adoption on the web at large is much less certain than that for a single site such as Flickr, some indicate that both total use and permissiveness have increased much more on the web at large than on Flickr alone. Look for a post on this in the next month.
Even more interesting questions about CC adoption and impact have barely been tapped — for example, differential adoption across fields and cultures, and levels and forms of and trends in reuse. Tentative answers would be incredibly interesting and in some cases would be incredibly valuable in demonstrating economic impact, e.g., reuse of Open Educational Resources.
This research was assisted by a grant from the Necessary Knowledge for a Democratic Public Sphere Program of the Social Science Research Council with funds provided by the Ford Foundation.5 Comments »
ReadWriteWeb* writes that English Wikipedia just passed the 3 million article mark. While this is a great accomplishment that will surely be widely reported, RWW correctly highlights that “Wikipedia” is much more than the English site:
The family of sites as a whole has more than 13 million articles in more than 260 languages, not counting discussion pages and other errata.
As RWW also notes, Wikimedia Commons, the media repository sibling of Wikipedia, is about to pass the 5 million file mark.
And it just happens that the vast number of wikis hosted by the commercial wiki platform Wikia will cumulatively surpass the 3 million article mark soon.
All Wikipedia articles are now available under the Creative Commons Attribution-ShareAlike license, all media hosted at Wikimedia Commons is under this or another free license or in the public domain, and most of the wikis hosted by Wikia are also under CC BY-SA, as are many other wikis, for example Wikitravel, WikiEducator, Planet Math, and Appropedia. Read about why this interoperability is a win for free culture.
Numbers alone are impressive enough and hint that Wikipedia has blown up the encyclopedia category and that other wiki projects will supersede other existing categories of cultural and educational artifact. However, the numbers only begin to tell the story. One place to see this unfold in highly concentrated form is Wikimania, the annual international conference of the Wikimedia Foundation. See the conference schedule, including panels featuring CC France and CC Taiwan co-founders Melanie Dulong de Rosnay and Shun-ling Chen (Authorship, Licenses, and the Wiki Borg) and me (OER Content Interoperability for WikiMedia platforms).
* Thanks ReadWriteWeb for all your awesome CC coverage!1 Comment »
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.No Comments »
Zemanta is an online platform for finding and adding “relevant images, smart links, keywords and text” to blog postings. Available in numerous incarnations (Firefox add-on, WordPress Plugin, etc.), Zemanta queries the text of a blog post against their own “proprietary natural language processing and semantic algorithms” to formulate media recommendations.
Images are pooled from Wikimedia Commons, Flickr and various stock photo providers – as a result, a large number of the photos are CC-licensed. The Zemanta interface displays what license a photo is released under before it is added to the post, making it clear to bloggers what permissions are allowed. You can read more about what Zemanta does here – it is a simple and efficient way to add rich media to blog posts and best of all, its free.1 Comment »
The most frequently used audio and video formats on the web are not open (they’re software patent encumbered), which has hindered the development of free and open source media tools. Open audio and video formats face a tough chicken and egg problem: not interesting to publishers if not supported in software, and not interesting to software developers if not much published open format audio and video.
Wikipedia and its media repository, Wikimedia Commons, have long been an important piece in this adoption puzzle. Along with only accepting liberal copyright licensing, they accept only free file formats.
Late July the Wikimedia Blog featured two hopeful items regarding open media formats. Both are still developing and well worth checking out despite this late posting.
First, an announcement that MetaVid lead developer Michael Dale has been hired by the Wikimedia Foundation:
As many of you may know, Wikimedia is working with Kaltura, Inc. to explore collaborative video editing in the Wikimedia projects. I’m very happy to announce that Kaltura has decided to support the further development of a 100% open source video editing solution integrated into MediaWiki. To this end, Kaltura is sponsoring Michael Dale, lead developer of the MetaVid project, to work in the Wikimedia Foundation offices in San Francisco beginning in early August.
Michael will work on adding support for video editing operations and other video-related functionality to MediaWiki, with a rich user interface built entirely on open standards like Ogg Theora. Michael’s work priorities will be coordinated between Kaltura and WMF. I am hoping that we can make incremental improvements to Wikimedia’s video capabilities that will start to become visible to users soon.
This is really excellent news. MetaVid impressed when presented at a CC Salon two years ago.No Comments »