Over the last 3-4 years many people have been speculating about how U.S. courts would interpret the Creative Commons (CC) licenses in litigation concerning their legal operation and effect. There are several reported cases in Europe, but to my knowledge, none so far in the U.S. Due to the popularity of the CC licenses, it was only a question of time before someone would try to enforce (or challenge) them in court. In the first occasion it actually happened, the claim took a quite unanticipated turn.
As Prof. Lessig posted last week, CC is a defendant in an action brought recently before a Texas court. All the important facts are summarized there, so I briefly reiterate only the very essentials. Photographer (P) took a picture of minor (M) and uploaded it to Flickr. A mobile telecommunication company (V) spotted the pictured on Flickr, which linked to a CC Attribution license (v.2), allowing anyone to use the photo both commercially and noncommercially as long the photographer is accredited. V used the photo for a commercial campaign, depicting M under the slogan “Dump Your Pen Friend.” M’s parent and P sued V on various counts. Also CC was sued for negligently “failing … to adequately educate and warn [P] … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.” (¶ 35 to the Complaint.)Source - Stanford CIS (blog)
