[cc-licenses] cc-licenses Digest, Vol 46, Issue 6
Jim Sowers
jim at spincycle.org
Wed Jan 10 12:15:47 EST 2007
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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> 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 2.5 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 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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>
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