[cc-licenses] cc-licenses Digest, Vol 46, Issue 6

Jim Sowers jim at spincycle.org
Wed Jan 10 12:18:38 EST 2007


I'm wrong about the section 352 clause, that is for releases, I'm still
groggy this morning :-)

jim

On 1/10/07, Jim Sowers <jim at spincycle.org> wrote:
>
> I am a lawyer.  The clause quoted below mentions does not refer to
> "actual" damages -- so whether that is interpreted as "direct" damages is
> irrelevant.
>
> I think the GC is right. The limitation on liability clause covers
> everything except direct damages, which is the usual way contracts are
> drafted, e.g., if I buy a bottle opener and it breaks in my hand and I
> have to go to the hospital -- direct damages would be my hospital bill.  If
> because I was at the hospital, I missed a sales call on a client and lost a
> deal, the make of the bottle opener would not be on the hook for the
> commission I lost out on (indirect or consequential damages).  This is an
> extreme example to make the point.
>
> I cannot really foresee someone having direct damages from watching a
> video :-)   But the bigger question is: What precludes UC or anyone else
> from simply modifying the CC license?  The licenses were made to help people
> who don't have legal resources at their disposal.  The UC Gen. Counsel can
> certainly modify the CC license to exclude all liability (she will need to
> include a section 352 waiver), and post the modified version somewhere on
> the relevant site.
>
> Licenses are contracts -- each contracting body can modify it to suit
> their needs.  Second Life just did this on Monday.  They released their
> viewer software as open source under GPL2, but they added a FLOSS exception.
>
>
> Hope this helps.
>
> Jim Sowers
> 510-469-7746
>
>
>
> On 1/10/07, cc-licenses-request at lists.ibiblio.org <
> cc-licenses-request at lists.ibiblio.org> wrote:
>
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> > When replying, please edit your Subject line so it is more specific
> > than "Re: Contents of cc-licenses digest..."
> >
> >
> > Today's Topics:
> >
> >   1.  Direct Damages? (Mara Hancock)
> >   2. Re:  Direct Damages? (Evan Prodromou)
> >   3. Re:  Direct Damages? (Mara Hancock)
> >
> >
> >
> > ---------- Forwarded message ----------
> > From: Mara Hancock <mara at media.berkeley.edu>
> > To:  cc-licenses at lists.ibiblio.org
> > Date: Tue, 9 Jan 2007 16:20:15 -0800
> > Subject: [cc-licenses] Direct Damages?
> > Hi -- I recently had one of our UC general counsel review the 2.5license so we can use it on our open video content (
> > webcast.berkeley.edu). She was concerned about the lack of disclaimer or
> > cap on the liability for direct damages. I don't really see a scenario in
> > which someone would incur direct damages from watching our videos, but I am
> > sure there is a way! Can you fill me in on why you omitted this and help me
> > articulate some assurances for her and our administration about this issue?
> > Thanks, Mara
> > ======================================================
> > Mara Hancock
> > ETS Associate Director of Learning Systems
> >
> > http://ets.berkeley.edu
> > University of California, Berkeley
> > Educational Technology Services
> > 117 Dwinelle Hall, #2535
> > Berkeley, CA 94720
> >
> > Desk: 510-643-2214
> > Mobile: 510-407-0543
> >
> >
> >
> > ---------- Forwarded message ----------
> > From: Evan Prodromou <evan at prodromou.name>
> > To: Discussion on the Creative Commons license drafts <cc-licenses at lists.ibiblio.org
> > >
> > Date: Tue, 09 Jan 2007 21:34:35 -0500
> > Subject: Re: [cc-licenses] Direct Damages?
> > On Tue, 2007-09-01 at 16:20 -0800, Mara Hancock wrote:
> > > Hi -- I recently had one of our UC general counsel review the 2.5
> > > license so we can use it on our open video content
> > > (webcast.berkeley.edu). She was concerned about the lack of disclaimer
> >
> > > or cap on the liability for direct damages.
> >
> > I'm not a lawyer, but isn't section 5 a disclaimer of warranty, and
> > section 6 a limitation on liability?
> >
> > Or does "direct damages" mean something particular here, not covered by
> > section 6?
> >
> > -Evan
> >
> > --
> > Evan Prodromou <evan at prodromou.name>
> >
> >
> >
> > ---------- Forwarded message ----------
> > From: Mara Hancock <mara at media.berkeley.edu>
> > To: Evan Prodromou <evan at prodromou.name>
> > Date: Wed, 10 Jan 2007 08:39:41 -0800
> > Subject: Re: [cc-licenses] Direct Damages?
> > Yes,  section 6 is where this would appear,  but according to our
> > Counsel they seem to include everything but direct damages:
> > 6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE
> > LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY
> > *SPECIAL*, *INCIDENTAL*, *CONSEQUENTIAL*, *PUNITIVE* OR *EXEMPLARY* *
> > DAMAGES* ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF
> > LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
> >
> >
> > I am not a lawyer either, but my understanding is that direct damages
> > may be the same as "actual damages." I can't seem to find a definition for
> > the Direct Damages term in either Law.com or nolo press.  I'll check
> > with our Counsel on this, but I was hoping that Mia might have a quick and
> > easy answer for me!
> > From Nolo Press:
> > compensatory damages Damages that cover actual injury or economic loss.
> > Compensatory damages are intended to put the injured party in the position
> > he was in prior to the injury. Compensatory damages typically include
> > medical expenses, lost wages and the repair or replacement of property. Also
> > called "actual damages."
> >
> >
> >
> >
> >
> > On Jan 9, 2007, at 6:34 PM, Evan Prodromou wrote:
> >
> > On Tue, 2007-09-01 at 16:20 -0800, Mara Hancock wrote:
> >
> > Hi -- I recently had one of our UC general counsel review the 2.5
> > license so we can use it on our open video content
> > ( webcast.berkeley.edu). She was concerned about the lack of disclaimer
> > or cap on the liability for direct damages.
> >
> >
> > I'm not a lawyer, but isn't section 5 a disclaimer of warranty, and
> > section 6 a limitation on liability?
> >
> > Or does "direct damages" mean something particular here, not covered by
> > section 6?
> >
> > -Evan
> >
> > --
> > Evan Prodromou <evan at prodromou.name>
> >
> >
> > ======================================================
> > Mara Hancock
> > ETS Associate Director of Learning Systems
> >
> > http://ets.berkeley.edu
> > University of California, Berkeley
> > Educational Technology Services
> > 117 Dwinelle Hall, #2535
> > Berkeley, CA 94720
> >
> > Desk: 510-643-2214
> > Mobile: 510-407-0543
> >
> >
> > _______________________________________________
> > cc-licenses mailing list
> > cc-licenses at lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
> >
> >
> >
> >
>
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