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

Mia Garlick mia at creativecommons.org
Wed Jan 10 12:29:00 EST 2007


So the reading is correct that direct damages are not expressly  
disclaimed in the CC licenses.  All warranties are disclaimed in the  
license (which is permissible in the US although this may be tempered  
in some jurisdiction licenses where that is not permitted by  
applicable law).  Consequently, it is difficult to see what direct  
damages could arise because there is nothing for the licensor to  
breach in the license.

Historically the CC licenses included a warranty (version 1.0) but  
this was removed as part of versioning to Version 2.0 (see http:// 
wiki.creativecommons.org/License_versions) and so consequently, it  
was considered unfair to expressly exclude direct damages because  
otherwise there would be no remedy for a warranty breach.  At the  
time warranties were excluded, it was decided to again not to include  
an express disclaimer of direct damages because of concern that it  
would not be enforceable and/or was unnecessary because warranties  
were now removed.

Anyone, including Berkeley is free to change the CC licenses - we do  
not assert copyright in the licenses - but if any change is made to  
the license, then it cannot be called a Creative Commons license; see  
our policies page: http://creativecommons.org/policies.

On Jan 10, 2007, at 9:18 AM, Jim Sowers wrote:

> 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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> 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
>
>
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