[cc-community] CC Dragged Into Lawsuit

Evan Prodromou evan at prodromou.name
Thu Sep 20 20:42:54 EDT 2007


On Thu, 2007-20-09 at 20:24 -0400, drew Roberts wrote:

> > I'm not sure about this - if you give me a photo and say that I can
> > use it commercially, how much am I expected to make sure that you've
> > cleared all the necessary rights?
> 
> Personally, I would not assume that the rights are cleared.

With the 2.0 licenses and above, you CANNOT assume that the rights in
the work have been cleared.

Here's section 5a of the 1.0 licenses:

By offering the Work for public release under this License, Licensor
represents and warrants that, to the best of Licensor's knowledge after
reasonable inquiry: 
             i. Licensor has secured all rights in the Work necessary to
                grant the license rights hereunder and to permit the
                lawful exercise of the rights granted hereunder without
                You having any obligation to pay any royalties,
                compulsory license fees, residuals or any other
                payments;
            ii. The Work does not infringe the copyright, trademark,
                publicity rights, common law rights or any other right
                of any third party or constitute defamation, invasion of
                privacy or other tortious injury to any third party. 

In the 2.0 licenses, this became:

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR
OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY
KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY,
FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF
LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS,
WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

It sucks to be Virgin Mobile in this case. They got some images that
were supposedly free to share and re-use for commercial purposes, but
their lawyers must not have read the fine print. (Probably would have
gone better if they hadn't captioned those photos with insulting
text...)

-Evan

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