[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: Draft summary of Creative Commons 2.0 licenses (version 3)

[I am continually amazed by the amount of effort that people will
exert to avoid fixing bugs, even when that effort exceeds the amount
required to fix the bug]

On Sat, Mar 26, 2005 at 05:27:57PM -0500, Benj. Mako Hill wrote:
> There are two areas where I think the write-up is a little more
> harsh/extreme than it should be (this is a critique that has been
> passed to me through SPI's lawyer and others who have looked at an
> earlier draft). In this situation and in general, I think legal needs
> to give a little more credit to reasonable expectations and expressed
> intent of licensors and license authors. Both are important concepts
> in private ordering and contract law and that this write-up seems to
> ignore or dismiss these at certain points in a way that I think might
> make conversations and negotiations more difficult.

We can only accept these in specific cases. For the general case of a
license which is intended to be applied to works by *other people*
(such that Creative Commons is *not* the licensor), we have to assume
the worst, because there will exist at least one licensor who *does*
mean the worst.

This not a theory. This is practical experience. This is why pine is
not free.

It is entirely possible that some licensor could go to court and say
"I used the CC licenses in the belief that this was prohibited, and
with the intent to prohibit it". There is nothing to use in defence
against this.

We certainly can and do give credit to "expressed intent of licensors"
- but for the CC licenses to be free in that manner, we would need
each licensor to express their intent. That means getting
clarifications from everybody. I believe it is currently possible to
upgrade the CC licenses to free licenses in this manner, but it would
be horrible.

The intent of the license author is not very interesting here, since
they have no formal relationship with the licensor and this is not
legal advice. Furthermore, they would be obliged to say when
questioned in court that "This was not our intent, but we were aware
of the existence of an alternative interpretation and we did nothing
to correct it". I wouldn't expect that to be very convincing.

> > Note that the HTML source code for the Web page includes a comment
> > that the trademark restrictions are "NOT A PART OF THE LICENSE". In
> > a graphical Web browser, the text for the trademark restrictions are
> > visually distinct from the license text. Creative Commons
> > representatives have stated that the trademark restrictions are not
> > part of the license. Finally, the same block of text states,
> > "Creative Commons is not a party to this License, [...]".
> > 
> > However, debian-legal feels that the visual distinctions are not
> > sufficiently clear to indicate that the trademark restrictions are
> > not part of the license, and some instances of the license found in
> > the wild include the trademark restrictions. The relation of the
> > trademark restrictions to the license proper is sufficiently
> > ambiguous to make it difficult for licensees to comply.
> Is ALLCAPS "NOT A PART OF THE LICENSE", plus statements from the
> authors, plus a graphical distinction and a explicit statement that CC
> is not party to the license in the same block of text *really*
> "sufficiently ambiguous" enough to make this a freedom issue?

Given the existence of licensors who have included it, in plain text,
as if it were part of the license? Yes, I would say that is
sufficiently ambiguous, since not even the licensors can understand
it's supposed to be disjoint.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
   `-             -><-          |

Attachment: signature.asc
Description: Digital signature

Reply to: