André Esteves aife netvisao.pt
Quinta-Feira, 22 de Setembro de 2016 - 01:16:46 WEST

O mecanismo copyleft foi pela primeira vez apreciado numa sentença por 
um juiz americano, validando e criando precedentes legais na 
jurisprudênçia americana. Isto tem consequênçias para todas as licenças 
utilizando este mecanismo legal, inventado por Richard Stallman, 
incluindo a GPL.



"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], 

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:

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

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."

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