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Institut für Rechtsfragen der Freien und Open Source Software

Creative Commons license affirmed by US-Court

by Florian Idelberger

This August, (but published only recently) the District Court in Columbia had to decide  on the interpretation and proper use of the CC-BY-SA 2.0 license, a Creative Commons license that requires attribution and publications of derivative works under the same license. The court regarded the license as effective on all accounts, in particular on the question of proper attribution as well as what constitutes a derivative work. Due to its specifics this case can be enlightening for non-professional users.

In the case at issue, a photograph uploaded to the photo sharing service flickr was used by a publishing company as thecover photo for an atlas. The plaintiff claimed the defendant had used the photograph in a manner constituted copyright infringement by using it on the cover the way they did. The plaintiff also claimed that they provided false copyright management information (attribution).

Whereas the license used by the plaintiff allows use of the work, it includes the share-alike clause for derivative works, according to which derivatives have to be based on the same license. The plaintiff based their copyright infringement claim on violation of this clause. As the photograph was used on the cover without modification, the court held (on the plain terms of the license) that the use of the work by the defendant did not constitute a derivative work but a collective work. Hence the share-alike clause was not engaged. Furthermore, while it was not clear if cropping took place, the court found that if it did, it was so minor as to not constitute a derivative work and fall within the scope of ‘necessary alterations’ for reproduction in alternative media.

The plaintiff claimed that the use of its work was not properly attributed as required by the license, as neither the full name and text of the license nor a link to the license text was included, but the “Uniform Resource Identifier” (CC-BY-SA 2.0) was printed on the back of the book, in conjunction with the name of the photographer. Distinguishing between URLs and URIs, the court held that the license’s reference (section 4 (a)) to URI as a requirement for attribution cannot refer only to a URL but instead is satisfied by the designated Creative Commons identifier. Lastly, the plaintiff claimed failure to properly attribute (section 4 (c)) by placing the name of the photographer on the back of the book and in smaller print than copyright notices on the inside of the atlas that covered the whole of the atlas. The court instead considered the text below each image a more appropriate comparison and dismissed the claim of improper attribution.

As a second claim, conveying false copyright information (not related to Creative Commons) under the US Copyright Code was raised. Based on the general copyright notice on the inside of the atlas for the whole work, which did not specify a separate notice for the image used on the front. The court dismissed this as well.

It is an important step for Free and Open Source Licenses, especially also in the area of Creative Commons to see the licenses tested and confirmed in court. For any creators considering to publish under those licenses, the interpretation of the court regarding proper attribution and what is necessary to fulfill the requirements of CC-BY-SA 2.0 can be very useful.