[cc-community] Illegal to be legal in Australia with CC0? help!
nic at suzor.com
Wed Aug 17 17:12:17 EDT 2011
On Thu, Aug 18, 2011 at 4:45 AM, Niklas Cholmkvist <towardsoss at gmail.com>wrote:
> Now a law in Australia has been passed that makes it illegal to "export"
> any kind of data to a foreign country through the
> internet that is waived under the CC0-orlater waiver.
> Two citizens from Australia start contributing data and user Alice
> contributes X
> data and user Bob contributes Y data to the database in France, Europe.
> Now, does this database in France contain data that has not been waived
> under CC0-orlater because
> of this law that was passed in Australia?
Probably. The problem with the hypothetical is that it would depend very
much on the law. These licences work precisely because international
copyright law is relatively harmonised. If one state were to enact a law
that made waiver (and licences) ineffective, then they may no longer work in
a technical sense.
There is an additional jurisdictional problem, which the case law does not
clearly resolve - it may actually matter whether the licence was made in the
country of residence (Australia, in your example) or in the country of the
database server (France).
That is not to say that Alice may not have a valid defence in the courts in
her country (mistake of fact, for example, or an innocent dissemination
defence under copyright), or a claim for indemnity from the original
(invalid) licensor. This explains why server operators often require some
sort of warranty or indemnity that the uploader has the right to license the
content under the terms chosen - not because of sovereign risk, but because
often content is owned by a third person.
So all we can really say is that the CC0 waiver + licence appears to work
right now, as a practical legal matter. We can't really speculate as to
whether it would work or not if states started to specifically legislate
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