Austrian Courts Uphold Creative Commons License Terms -- For Now

from the but-it's-not-over-yet dept

Last week, Mike wrote about an important case involving one of the Creative Commons licenses. The fact that some 15 years after the CC movement started and the courts are still trying to bring legal clarity to the use of CC licenses is further proof that the law tends to lag far behind technology. Given their rarity, it's interesting to see another recent case involving a CC license, this time in Austria, pointed out by Alan Toner on his blog.

As the timeline (in German) of the events indicates, the story began in January 2014, when thousands of left-wing protesters demonstrated against a ball organized by the far-right Freedom Party of Austria (FPÖ), held annually in Vienna. Following attacks on property and the police during the protest, one person was arrested, and in June 2014 his trial began.

The left-wing film collective Filmpiraten published a couple of short videos relating to the person involved. Shortly afterwards, the FPÖ used excerpts from the two Filmpiraten videos as part of a report published on its YouTube channel. The FPÖ video was released under the standard YouTube license, which claims full copyright in the material. However, both the Filmpiraten videos used a Creative Commons license -- specifically, the BY-NC-SA license. Under its terms, others may use the material free of charge, but are required to release the resulting work under the same CC license.

The FPÖ video did not respect that condition, so Filmpiraten's lawyers sent a letter asking for its material not to be used. The FPÖ responded by taking Filmpiraten to court, demanding €35,000 (about $40,000) in compensation for what it said were false accusations about its use of copyrighted material. The court case finally began in February 2015, and in July 2016 the judge ruled in favor of Filmpiraten, effectively upholding the Creative Commons license.

One worrying aspect of the case is that Filmpiraten struggled to find the resources to conduct such an expensive and time-consuming legal battle. As a spokesperson for the organization told the Austrian site futurezone, that may be why the FPÖ has adopted this approach -- and why it is now appealing to a higher court in an attempt to get the judge's ruling overturned.

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  • icon
    That One Guy (profile), 7 Sep 2016 @ 4:47pm

    Ah good old copyfraud...

    Rather than backing down or simply changing the terms they were offering the videos they went on the offensive to try and bleed the other group dry, a 'victory by default' as it were. While it's nice that they lost this round, and will hopefully lose the next one(or even better have their appeal tossed), it would be even better if such a tactic wasn't a viable option at all, such as if they were ordered to pay the legal fees of the other side.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Sep 2016 @ 5:00pm

    "One worrying aspect of the case is that Filmpiraten struggled to find the resources to conduct such an expensive and time-consuming legal battle. As a spokesperson for the organization told the Austrian site futurezone, that may be why the FPÖ has adopted this approach -- and why it is now appealing to a higher court in an attempt to get the judge's ruling overturned."

    This is my biggest complaint about copyright. Even if you want your work given away, you'll have to sue to ensure that it is, since the bloody monopoly is controlling all of the legal resources. Just look at the case of Carol Highsmith. So far CC and possibly some software licenses, though they are a train wreck in legalize, are the only licenses to permit such situations. Personally, I use usually the beer license and CC attribution for my personal stuff, but hell if someone can make a buck off of my work go to town.

    reply to this | link to this | view in chronology ]

    • icon
      MadAsASnake (profile), 8 Sep 2016 @ 2:33am

      Re:

      CC licenses are far from perfect. The train wreck here is copyright law which created the need for CC. Due to laws requiring registration being dropped (I guess Hollywood just couldn't be bothered keeping track of it's rights) every trivial thing is now bound for life + (50 / 70 / 100?) years, whether people want it to be or not this change means that Public Domain is no longer the Defacto standard - which it should be. It is not even possible to simply state that something is in the Public Domain, and every use of something risks silly battles like this. Nor is it possible in the vast majority of cases to work out what copyright may apply to a work. CC should not generally be necessary. In this case - a simple attribution should have been all that was needed.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Sep 2016 @ 8:07pm

    So far the best action I saw from a FPÖ politician was from Haider and I'd wished the rest of the FPÖ would follow suite.
    Or take a hint from their German counterpart and doing as did Möllemann.

    I mean, don't all politicans want to have an impact of some sort?

    reply to this | link to this | view in chronology ]

  • identicon
    Call me Al, 8 Sep 2016 @ 1:23am

    Fair use?

    I might be misreading / misunderstanding this but isn't there a fair use issue as well here?

    I would think that many people would support any group being able to use snippets of other videos as part of a published work such as this report without having to worry about the copyright on the snippets.

    No idea if Austria has a fair use equivalent (I know the UK, where I am, doesn't) but I think it is something we should cheer for even if the people using it are reprehensible.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 8 Sep 2016 @ 2:40am

      Re: Fair use?

      It sounds like it would be covered by fair use in the U.S., but there is no comparable provision in Austrian law I think. There are exceptions but those concern educational and scientific use mostly, I think. Party propaganda is "for the benefit of the public" since it is part of the political process. But I'm still skeptical that it would be covered.

      However, once the premise is that any CC license is equivalent to being in the Public Domain, the court does not even get to rule about one of the so-so fair use equivalents.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 8 Sep 2016 @ 6:08am

      Re: Fair use?

      No, there is no fair use issue here, even if it were in a country that had fair use. But this is in Austria.

      The core issue here is a fraudulent ownership claim. FPO claimed those video snippets were theirs not the actual owners, and sued the owners to get a court to declare that FPO were the actual owners -- whether by judicial fiat or by running the actual owners into bankruptcy so a default judgment would find in favor of FPO.

      Fraudulent claims of copyright ownership are NEVER fair use.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 9 Sep 2016 @ 1:43pm

        Re: Re: Fair use?

        A thought just occured to me from reading your comment and remembering the shenanigans regarding the 'Copying is not theft' t-shirts.

        Copyfraud, unlikely copyright infringement is actually an attempt to take something from someone, specifically the ownership of a thing.

        'You had it, I claimed to own it, now I have it and you don't'

        Perhaps an alternate t-shirt for next round, or a new one could be:

        FRONT
        'Copying isn't theft...'

        BACK
        '... but copyfraud can be.'

        reply to this | link to this | view in chronology ]


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