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cc-licenses - Re: [cc-licenses] Direct Damages?

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  • From: "Traymore, Anthony S." <ATraymore AT ReedSmith.com>
  • To: "Discussion on the Creative Commons license drafts" <cc-licenses AT lists.ibiblio.org>, "Evan Prodromou" <evan AT prodromou.name>
  • Subject: Re: [cc-licenses] Direct Damages?
  • Date: Thu, 18 Jan 2007 15:19:08 -0500

I am a technology attorney.  Direct damages are actual, provable, quantifiable damages as opposed to indirect, speculative, special, consequential, punitive, etc. damages.  My general positions are (a) when representing a licensee, that direct damages should not be subject to a cap since these are actual damages and/or losses for which the responsible party should be liable and (b) when representing a licensor, that direct damages should be capped at some multiple of the fees paid under the license which makes the risk commensurate with the value of the contract (e.g., 12 months fees)--which obviously does not apply in an open source context.
 

Anthony
Advertising Technology & Media Law
ReedSmith LLP

212.549.0358

 


From: cc-licenses-bounces AT lists.ibiblio.org [mailto:cc-licenses-bounces AT lists.ibiblio.org] On Behalf Of Mara Hancock
Sent: Wednesday, January 10, 2007 11:40 AM
To: Evan Prodromou
Cc: Discussion on the Creative Commons license drafts
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

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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