[cc-licenses] New Generic and ports
a.guadamuz at ed.ac.uk
Sun Oct 8 05:55:11 EDT 2006
Henri Sivonen wrote:
> I see multiple versions as more difficult.
> It seems just wrong to me that even the U.S., England & Wales,
> Scotland, Canada and Australia have distinct licenses although they
> share a language *and* a legal tradition.
We will have to agree to disagree, I strongly believe that there are
local distinctions in those countries that make the porting necessary.
By the way, Scotland is a mixed legal system, more akin to Quebec,
Louisiana and South Africa.
> Moreover, if I read those licenses and Finnish licenses and Swedish
> licenses and French licenses and Canadian French licenses, I still
> wouldn't know what e.g. the Dutch licenses say.
I don't see your point here. I don't need to speak Japanese to know what
the content of the BY-SA Japanese licence will be roughly like. I know
that the licence will not be the exactly same licence as I'm familiar
with, but I know what basseline rights are.
> Do you mean CC by "movement"? What are the stated goals other than
> exploring the "Some Rights Reserved" spectrum (without any baseline
> definition like the Free Software Definition)?
There is a baseline definition for CC. As for the movement's goals,
check out iCommons:
> Your next paragraph, for instance, suggests that you can read them as
Where needed, the ported licences act as translations, but they also are
modified versions of the original American licences in order to
accommodate to local legal requirements. They can be both ports and
translation, there is no need to think of them as eihter/or. BTW, I do
not speak for CC in any shape or form, my opinions are my own.
> What authorizes courts to apply a local license instead of the one
> the licensor used in cases of verbatim copying (where the
> jurisdiction change clause on derivative works does not apply)? What
> would happen if CC did not provide ports? E.g. what happens with the
> Sampling license?
I'm not implying that courts will always look at the local ported
licence even if there is a local version, but in practice this is
something that can be done, and my argument is that this works in favour
of the licensor. Imagine that a court in Spain needs to deal with an
infringement case involving a generic English licence, and the judge
does not speak English. The judge can have the licences translated.
which will enhance costs and it will take time. On the other hand, the
judge can look at the translated and ported version of the same licence.
Faster, cheaper and saves time.
As for non-existent ports, then the judge has to look at the text in
front of him.
> Does CC believe that the approach that FSF has taken with GPLv3,
> GFDLv2 and GSFDL is legally flawed?
Sigh! Again, I do not speak for CC, so CC does not "believe" anything,
these are my personal opinions. As for my personal opinion, I do indeed
think that the GPL v2 rests on shaky ground in many jurisdictions,
something that is being solved by re-drafting efforts in version 3. I
also believe that despite protestations to the contrary, the GPL is a
contract in most jurisdictions.
> If CC believes that the approach FSF has taken is flawed, what's the
> point of the "New Generic" license (which is distinct from the U.S.
I have to return to my previous response. I think that comparing the GPL
and CC is an exercise akin to comparing apples and oranges. I have
already given an opinion that there are marked differences in both
licences with regards to moral rights, target audiences and subject matter.
> If CC believes that the approach FSF has taken is not flawed, doesn't
> it follow that CC is creating complexity for no good reason?
See above. What the FSF does is their own concern. CC has chosen a
separate route. IMO, I like CC's route better.
> You cannot see what a Finnish license says by reading a Canadian,
> U.S., Scottish, English & Welsh or Australian license, because even
> those five are different among themselves!
Yes, but you can understand the general licence because you can read a
version of the licence in your own language!
> I prefer not to litigate, but if I was in a situation where I had to
> litigate, I'd prefer to do it in Helsinki, Finland. It does not
> follow that the license could not be written in the English language.
You misunderstand, you can use the English version, but you can use the
Finnish version if you want. Personally, I would use the local version
to make sure that if I needed to go to court it I would have a better
chance of winning, but we have established that you prefer the English
version. Fair enough. My point still is that what works for you may not
work well for millions and millions of creators that do not speak
English, and who would like to use a local version of the licence.
> If they are incompatible, how can I know what I am dealing with by
> reading the licenses for other jurisdictions like you suggested
> above? If they are incompatible, how can the cross-jurisdiction
> license change clause of CC-by-sa work?
By the very nature of the porting process, there will have to be
conflicts and incompatibilities between local ports, but this is better
in my opinion than have the entire licence (or an important pat of it)
struck down because it is incompatible with local legislation. Most
importantly in my opinion, judges can look at existing porting
documentation in order to interpret the letter of the licence. IMO, one
of the greatest achievements of the global porting effort is that I
believe that it is the largest comparative licence drafting exercise in
legal history. The amount of expertise and analysis in discussion lists
such as this one can be useful for future courts when trying to decide
on a conflict between licences.
> Because user-friendly language seems to be a generally good idea
> unless it is specifically prohibited somewhere.
I completely agree (but I'm in the UK), but I don't want to export
drafting practices everywhere.
> Would following the stringent European rules in the U.S. be wrong?
It would. In Europe, certain limitations of warranty tend to be unfair
right away, but American warranties are much broader. I believe that
licensors would prefer to have a blanket American warranty than a weak
European one, while consumer would prefer it the other way round. By
the way, this is not unique to CC licences. IMO, the GPL's warranty
exclusion clause is unconscionable in Europe if a consumer is involved.
As I mentioned, the definition of what constitutes a consumer is very
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