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

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Subject: Development of Creative Commons licenses

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Chronological Thread  
  • From: Mia Garlick <mia AT creativecommons.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] cc-licenses Digest, Vol 46, Issue 6
  • Date: Wed, 10 Jan 2007 09:29:00 -0800

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



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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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