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cc-licenses - Re: Warranty Issue Revisited

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  • From: email AT greglondon.com
  • To: cc-licenses AT lists.ibiblio.org
  • Subject: Re: Warranty Issue Revisited
  • Date: Mon, 23 Feb 2004 08:56:56 -0800 (PST)

On Mon, 23 Feb 2004 00:30:55 -0500, Sal Randolph wrote:
> By licensing the work in the first place, artists are stating that it
> is theirs to copyright and license. I really feel that is sufficient.

I agree. Copyright grants exclusive rights to the Author,
and a License is a grant by the Author to give some,
none, or all of those rights back to some, none, or
all of the public.

A Copyright Notice (Copyright 2004 Greg London)
followed by a License, (All Rights Reserved)

is a claim that the work is mine and that I have the
right to license it as I see fit.

A plagarist will simply post a Notice+License
if that's what's needed, or a Notice+License+Warranty,
if that's the accepted norm, in either case, they're
just out and out lying that the work is their's.

The fear of SCO-type reprisals is feeding part of
this discussion. but I don't think that any
Warranty or Contract or legal document will ever
rule out the possibility of a deep-pocket lawsuit.
The SCO lawsuit is more than copyright violation,
too. The initial lawsuit was for misappropriation
of trade secrets and unfair competition. So to
completely cover yourself, the license should also
warranty that the work does not misappropriate
trade secrets or cause unfair competition as well.

> From the music point of view, I just want to reiterate that making work
> with legally ambiguous samples puts artists in enough jeopardy as it
> is, and that I believe the warranties add too much additional legal
> liability.

Warranty is a legal term, too, specifically regarding
product warranty. In the US, warranties are governed by
state laws, not federal, and all states have product
warranty laws for Merchantability (it does what you would
expect it to do) and Fitness for a Particular Purpose
(it does whatever the salesman tells you it can do).

These are implied warranties, and all products come with
these warranties even if you don't get any paperwork
to support it.

The only way to get around the implied warranty is to
distribute the product "As-Is", which means ALL warranties
are disclaimed. All open source software is distributed
As Is, with no product warranty.

What is being talked about here is not under the
heading of "product warranty".

What you want is a promise from the author that the
work is their work and that they didn't plagerize
anything proprietary. But that's what the Copyright
notice and License do.

Mike creates some music and licenses it CC-SA.
Dave has a website that distributes CC-SA music.
Dave sees Mike's stuff and puts it on his site.
(Or, Dave sets his website up so that Mike can
do it automatically, without Dave having to
chaperone everyone)

Sony then informs Dave that Mike's music includes
some samples from their latest boy-band.
Sony sues Dave for all the money he made on his
website via advertising, and also for damages
from lost boy-band sales.

There is no magical legal document that I know of
that Mike can sign and give to Dave that will
protect Dave from being sued by Sony.

I'm not a lawyer, so there could be such a thing,
but I've never heard of it. It's a lawsuit-happy
world out there.

> Part of the whole point of all this, politically speaking,
> is to move back towards a cultural situation where we have the rights
> to comment freely on our cultural icons (ie Micky Mouse) and use them
> in our creative speech.

um, I'm not sure that is the "whole point of all this".
Works are the property of teh Authors, and if the author
wants to license the work "All Rights Reserved", then
I have complete respect for that. Mickey Mouse is licensed
all rights reserved and won't start to enter the public
domain for a while.

I think the point of all this is to create a set of licenses
that put works other than software into a public commons,
to create a gift community where people can give their
works to the public and allow the public to take it
and do what they want with it, including building on it and
improving it.

The ShareAlike license does this. But I'm against the
extra restrictions that can get tacked on, such as
No-Commercial-Use and No-Derivatives and Education-Only.
The author is not treating their work like a gift to
the public and is instead distributing it with strings
attached.

If you meant the point is to create NEW cultural icons
that are licensed openly so we can use them in our
creative speech, I agree. The example of this in the
software world is Linux becoming a new cultural icon
that people can use freely. Proprietary Unix still
exists, so does Microsoft Windows. And that's their
choice to follow the proprietary business model.

But the GNU-GPL is a license that puts its works
into a public commons where anyone can do whatever they
want with it (even sell it) as long as the works
remain public. And that license, I think, is part
of the reason that linux became a new cultural icon.

It also took years of toil by the people who contributed
their works to linux under the gpl. But I don't
believe Linux would be anything like it is today
if it was a NoCommercialUse or EducationOnly license.




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