German court enforces Creative Commons licence

Thilo Sarrazin by Nina Gerlach / CC BY-SA

This bit of news was reported by the Creative Commons Blog some weeks ago, but it deserves as much dissemination as possible. The regional court of Berlin (Landgericht Berlin) has effectively enforced a CC Attribution-ShareAlike (CC BY-SA) Unported licence against a far-right party. This is great news because it is the licence used by Wikipedia and the Wikimedia Commons, lending strength to the licences in Civil Law jurisdictions, but also serving as a clear example of the way in which the licences are just as enforceable as any copyright document.

The facts of the case are quite straightforward. Nina Gerlach took a photograph of German politician Thilo Sarrazin and uploaded it to Wikipedia under a CC BY-SA licence, where it is used in his entry. The defendant, a German far-right party website (www.die-rechte.info, which seems to be down at the time of writing), posted the picture without attribution and without a link to the original, as specified by the terms of the licence. Ms Gerlach, a Wikipedia contributor, sued for licence breach with the help of German enforcement expert extraoidinaire Till Jaeger. The judge considered that the defendant was in breach of the licence, and therefore was infringing copyright due to unlawful use of the image. The judge therefore issued injunctive relief, ordering the website to remove the picture or face penalties of up to €250,000 EUR for each case of non-compliance, or alternatively suffer an arrest for disobedience of court orders of up to six months.

The relevant part of the ruling reads as follows (translated to English by John Hendrik Weitzmann, I’ve replaced some abbreviations):

PRELIMINARY INJUNCTION RULING

[...] it is commanded by way of preliminary injunction, due to special exigency without oral hearing, according to s. 935 ff., 91 of the Civil Proceedings Act: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 Copyright Act.

The photo enjoys copyright protection as a photographic work in the meaning of s. 2 ss. 1 No. 5 Copyright Act or as a photograph in the meaning of s. 72 Copyright Act. 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 Copyright Act.

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 [sources snipped].

A preliminary ruling seems also “necessary” in the meaning of s. 940 Civil Proceedings Ac, 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 Berlin Supreme Court WRP 2005, 368, 369).

Dr. Scholz Klinger von Bresinsky [original PDF here]

This is an important ruling for one very important reason: the judge does not even bat an eyelid by being presented with a Creative Commons licence, and an unported version at that. Dr von Bresinsky simply notes the most relevant detail of the licence, namely that it requires attribution and a link to the original picture, and finds prima facie evidence of licence breach. This triggers the normal copyright infringement procedure, including the injunction issued in this case, and the possibility of the existence of damages in case of non-compliance. The importance arises precisely because of the ease with which the infringement was enforced, and this point cannot be overstated. It is common to hear Creative Commons opponents state that court cases are needed to ensure that the licences are legal. Well, here they have one more. Moreover, it is clear that CC is just another copyright licence, and when a court is presented with a case of licence breach, it will treat it as such. There are no lengthy questions about the validity of the licences, or whether a German court can enforce a document drafted in English. In the international licensing environment, courts have become sophisticated enough to enforce legal documents of all provenance, and this was not an exception.

This is yet another victory for CC. May the winning streak continue.

6 comments to German court enforces Creative Commons licence

  • The correct word is "license". Great news but please fix the error :-)

  • Victory for common sense copyright, yes. But for Creative Commons? I'm not sure.

    Seems to me the CC licence has standing here only as background circumstances relating to the original use on Wikipedia. The photographer would be entitled to injunctive relief whatever the circumstances of the work's original publication as its subsequent by Defendant was not authorized. Of course, if the website had complied with the terms of the CC licence, then I guess the photographer would be estopped from bringing any infringement action. But that's not what's happening here: if there was merely a breach of licence, why not simply order the website to provide attribution and the link to bring them into compliance? There's more to this than appears.

    • Hi Tom,

      I agree that there is something else going on here. I suspect that the fact that the picture was used by a far-right party is what differentiates this from your average injunction. The injunction seems normal to me, except for the threat of 250,000 EUR penalty for non-compliance. Then again, I'm not that familiar with German copyright injunctions to be able to comment further, and the text of the injunction is economical, to say the least.

      I disagree, this is not a triumph for CC, as it seems to me that CC is treated normally, and therefore enforced just like any other licence. This is big news for CC, as it has always been stated that CC licences are not different from any other licence.

  • Hi.

    First of all: I am not a lawyer. But as far as I know, if the German court were to 'forget' adding the threat what might happen in case of non-compliance, the person losing the case could easily ignore it. A new injunction would be needed (adding a threat), and only then, after an additional time to comply, could that threat be carried out…

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