US Court interprets copyleft clause in Creative Commons licenses

“Swain’s Lock, Montgomery Co., MD.” Photograph by Art Drauglis.

During the last decade, a common attack against open source licenses from their opponents stated that the documents were invalid because they had not been tested in court. This type of FUD (Fear, Uncertainty, Doubt) seemed to be very popular with certain unimaginative legal types unwilling to fathom innovative solutions. And of course, such an argument is entirely wrong, a license does not need to be tested in court to be valid, we happily sign and agree to hundreds of Terms of Use and End-User License Agreements that have never seen so much as a legal brief. But yet this myth continued, at least until courts started deciding in favour of copyleft licenses (some cases in this article by Yours Truly).

At some point this same strategy was used against Creative Commons licenses, and I cannot count the number of conferences and presentations where a member of the audience asked if they had been tested in court. My answer was the same as with open source, but anyway this strategy waned as the first legal decisions interpreting CC in court came along. We have had a sizeable number of CC cases through the years, and now we can add the case of Drauglis v. Kappa Map Group, LLC to the growing corpus of decisions.

The plaintiff was photographer Art Drauglis, who uploaded several pictures to the photo-sharing website Flickr using Creative Commons Attribution-ShareAlike 2.0 Generic License (CC BY-SA); including one entitled “Swain’s Lock, Montgomery Co., MD.” pictured above. The defendant is Kappa Map Group, a map-making company, which downloaded the image from Drauglis and used in in a compilation entitled “Montgomery Co. Maryland Street Atlas” (pictured). While there’s nothing in the cover that indicates the provenance of the picture, the following text appears at the bottom of the back cover:

“Photo: Swain’s Lock, Montgomery Co., MD
Photographer: Carly Lesser & Art Drauglis, Creative Commoms [sic], CC-BY-SA-2.0″

The atlas was sold commercially, and while the author had released it under a license that allows commercial use, he came to object to the use of the picture in this manner, suffering what we call “licensor remorse”. Drauglis then sued the defendants on June 2014 for copyright infringement and license breach, seeking declaratory and injunctive relief, damages, fees, and costs.

The judge dismissed outright the claim of copyright infringement citing the landmark decision of Jacobsen v. Katzer. Because this is a situation in which a work has been licensed by the author, and that fact is not in dispute, then the plaintiff cannot claim copyright infringement as a license gives authors permission to perform acts that would otherwise not be allowed under full copyright. It is therefore up to the plaintiff to prove that there has been a breach of the terms and conditions set out in the license.

Because CC BY-SA specifically allows commercial use, the plaintiff had to prove that the defendant had not fulfilled one of the other requirements. They tried to argue that Kappa Maps had breached the license in three ways:

1. The defendants did not publish their derivative work with the same license as the original, therefore violating that share alike (copyleft) clause.
2. The defendants did not include the proper Uniform Resource Identifier (URI) for the license.
3. The defendants did not properly attribute the work.

As all of the above are terms and conditions within the license, so if the licensor did not fulfil any of them they would be in breach, and therefore would be infringing copyright. The court agreed that it had to interpret the license under traditional rules of contract interpretation, stating that “the plain and unambiguous meaning of a written agreement is controlling, in the absence of some clear evidence indicating a contrary intention.” As such, they provided one of the more detailed interpretations of a CC licence that we have had so far.

With regards to the first claim, the judge agreed that the work had not been published under a CC license. However, she remarked that the share alike provision only applies to derivative works, and they interpreted that the atlas book was not a derivative, it was rather a compilation. The judge explains:

“Plaintiff contends that the Atlas, “or at least the cover, is a derivative work.” […] But the Atlas is a map book and not an adaptation of plaintiff’s photograph. Because this 112-page book of maps is not in any way “based upon” the Photograph, and because defendant did not “recast, transform[], or adapt[]” the Photograph when it used it as the cover art for the Atlas, see License § 1(b), the Court finds that neither the Atlas nor its cover constitutes a derivative work subject to the ShareAlike requirement. Rather, the Atlas is more akin to a collective work, because the Photograph was placed “in its entirety in unmodified form” alongside “other contributions, constituting separate and independent works” – that is, the maps.”

The text of the license indeed reads in the relevant section:

““Derivative Work” means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.”

With regards to the second claim, the judge had to decide whether the defendants had included an URI to the legal text, as the license requires that “You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform.” The court found that there is no legal definition of a URI in the case law, so they used a definition by Sir Tim Berners-Lee which says that an URI is “an identifier consisting of a sequence of characters . . . . [which] enables uniform identification of resources via a separately defined extensible set of naming schemes.” The broad interpretation of this definition is that this does not require a clickable link, it only requires the provision of a unique identifier that can allow users to find the text of the license. The judge ruled that this requirement can be met with the inclusion of the words “Creative Commoms [sic], CC-BY-SA 2.0”.

Finally, the court had to decide whether the attribution provided was sufficient. The relevant provision in the 2.0 license is that “in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.” This does not mean that the attribution should have the same prominence as the main author, it only requires that it is comparable with other similar authorship. The plaintiffs tried to argue that the attribution should have been comparable to the entire work, but Judge Jackson decided that the only comparable attribution was that at the bottom of each map, and therefore the inclusion of the photographer’s name at the bottom of the back cover awarded an adequate level of attribution.

Given all of the above, the conclusion was to grant summary judgement and to dismiss the case on both counts.

This is a great decision for many reasons. Firstly, we have a judge that read the terms and conditions before her in a clear and concise manner, and rightly interpreted all of the important elements. Secondly, the ruling helps to cement many of the legal concepts behind open licenses in general, and CC licenses specifically. To have a proper legal interpretation of the copyleft clause is of particular importance. Finally, this case serves to assure licensors who re-use works licensed under CC.

Nevertheless, I am worried that the case may be used by detractors of open licensing as an example of the dangers of releasing your work with the more permissive licenses that allow commercial use. I hope that will not be the case, authors should take responsibility over their licensing decisions, you do not need to have a law degree to understand the basic concepts behind the licenses. At the very least, photographers should look at their decisions in a more thorough manner.

Drauglis v Kappa Map Group