[cc-licenses] New Generic and ports

Andres Guadamuz a.guadamuz at ed.ac.uk
Sat Oct 7 19:34:00 EDT 2006


Henri Sivonen wrote:
> Moreover, if you don't accept the license, you don't get the rights,  
> so a prospective licensee has an incentive to figure it out.
>   
Why assume this? If there is an enthusiastic group of people who have 
bothered to translate the licence for you, and to make sure that it is 
compatible with your local legislation, why not use it? Why make things 
more difficult when it can be easier?
>
> The official party line has been that they are not mere translations  
> but ports. 
Can you please cite evidence that this is official party line? AFAIK, 
ports are also translations (where required). IMHO, this is extremely 
important to the stated goals of the movement.

> Yet, even people close to CC tend to think of them as mere  
> translations. 
Again, can you provide evidence for this?

> Of course, in practice people will treat them as  
> translations. If there's a language-independent photo licensed under,  
> say, a Dutch CC license, most people around the world are going to  
> read the Dutch license but a license in some other language.
>
>   
The general principles are similar in all ports, so it is fine to look 
at a Chinese, English, Spanish, French or Portuguese version of the same 
licence in order to understand what the terms and conditions are. I will 
keep repeating this, but not everybody in the world speaks English 
fluently. As I mentioned in my previous post, local courts can use their 
local licence for interpretation even if the creator has used the 
Generic English licence.

> But they aren't mere translations but ports. How is the rest of the  
> world going to know what weird stuff crept into the license when  
> porting?
>
>   
Ports meet two goals, porting legal documents and translation for the 
public. I also think that the term translation is much broader than 
"porting". Porting is not a legal term, but translation is.
> So does CC believe that people in country X can't use works licensed  
> under a license from country Y, because the license from country Y  
> doesn't follow the conventions of X?
>   
These are not "conventions". This is law. A Scottish licence may not be 
a contract in the United States, and an American licence may not be a 
valid in Europe. This has nothing to do with CC's ideas, it is a fact of 
International Private Law.

> Also, there's a much more tangible problem if it is true that people  
> in country X *must* use licenses for country X: 
Ahhhh! They don't HAVE to use the local licence, but they can if they 
want to feel more confident that their licence will be upheld in court.

> If I write in  
> English, which I do a lot, using a Finnish-language license makes no  
> sense. (Due to the way the world works, this is not symmetric and an  
> English-language license for Finnish-language content is still  
> practical.)
>   
Why does it not make sense to use the Finnish licence? Even if you write 
in English, where would you expect to litigate if you were in a dispute 
over the licence? Because of the symbols, people will know that you are 
using a specific licence (say CC-BY-NC). I think that you are also 
applying your own personal experience and trying to argue that the rest 
of CC users across the world are the same. While it could be better for 
you as an individual user to use the Generic licence, this may not be 
the case for a large number of creators. Nobody is forcing you to use 
the Finnish licence if you don't want to.

>
> Why can't the licenses contain a blanket waiver for what is waivable  
> and that CC doesn't want specifically to retain? What is not waivable  
> cannot be waived anyway.
>   
If only it were that easy... During the last iCommons summit I believe 
that we counted five different ways in which present jurisdictions 
handled moral rights and waivers, most of them incompatible with each 
other. I don't know why complicate an already complex licence with five 
possible eventualities regarding moral rights, when there are people 
willing to prot the licence to fulfil the local treatment of moral rights.
> Can't the Generic version be in user-friendly language? Does the U.S.  
> *require* unfriendly language to be used?
>   
Why should it when only the UK requires user-friendly language? American 
drafting style does not require user-unfriendliness, but it favours 
functional complexity (have you ever read the GPL?).
> Moreover, why does CC consider the licenses consumer contracts? A  
> mere consumer doesn't need the license to view the work. 
I don't speak for CC (what gave you that idea?).  At least in the UK, 
the definition of consumer is extremely broad, it is someone who is 
acting outside of his/her normal business. Case law has given us plenty 
of examples of companies and even local government being considered 
consumers. So it makes a lot of sense to draft these licences following 
consumer rules, as almost certainly it will end up applying to 
consumers. Besides drafting, consumer contracts are subject to stringent 
unfair terms rules in Europe, so our warranty waivers have to be worded 
differently than what you will find in American licences.
I cannot speak for other jurisdictions though, but this serves to 
further the case for local porting and translation, at least in the UK.

> How does this work for use cases like Flickr? The content creation,  
> consumption and remixing crosses borders. It isn't realistic that  
> people only interact within their own country in the official  
> language of their own country.
And nobody said that they do! However, in the case of disputes, you need 
to be able to bring an action somewhere, and better to bring it in your 
local court than having to sue somewhere else. In my opinion, it is 
easier to establish right away choice of law and jurisdiction clauses 
with a local licence. Legal security and all that.


-- 
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law 
Old College, South Bridge 
Edinburgh EH8 9YL 

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz at ed.ac.uk
http://www.law.ed.ac.uk/ahrb/
http://technollama.blogspot.com/




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