[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Sun Oct 8 09:27:33 EDT 2006


On Sunday 08 October 2006 01:24 am, jonathon wrote:
> Drew wrote:
>  > do you think this is a wise course to pursue?
>
> I probably chose the worst possible CC licence, if my primary aim was to
> avoid litigation. [CC-NC-SA].
>
> I don't look forward to being the person who gets to go to court the
> first time somebody disputes the meaning of "non commercial".  My hope
> is that the court will agree with me, and that it means "may not be sold
> in any context", and that "profit", or "recovery of costs" are
> irrelevant.  That said, in most jurisdictions, I will not have to
> personally appear, but can be represented by a local law firm.
>
>  >had you though of this?
>
> Yes.
>
> Since I expect the most significant dispute to be over the meaning of
> "Non Commercial", getting a contract that complied with the local laws
> is more important that a contract based on my domicile.  I'd rather
> fight a case in foreign jurisdiction, with the knowledge that the
> contract per se is not void, than fight with the uncertainty of knowing
> whether or not the contract is valid.
>
> Filing a lawsuit in my local domicile, when the defendants are in
> another country is a good way to get the case thrown out of court, even
> if, or perhaps, especially if, the defendant does not show up in court.
>
> Other factors:
> * The English language version is copyright in the US, and uses the US
> CC licence.  This has jurisdiction in the US, and suit can be filed in
> the US, pretty much regardless of where in the world the violation occurs;
> * The translated material is copyright in a country in which the
> language is an official language, and uses the CC licence appropriate to
> that language/country.  The translator is listed as co-author, and
> usually is domiciled in the country copyright is filed in.
>
> > Courts actually do this? On a regular basis?
>
> If both sides have the identical whacked out misunderstanding that flies
> against both common sense and the law, courts will rule according to
> that whacked out understanding, but include a note in the judgement that
> this verdict was rendered in accordance with the misunderstanding of
> both parties, and not in accordance with the case law and statute law of
> the jurisdiction.
>
> If one party has a whacked out misunderstanding of a clause, and the
> other party has a different, whacked out misunderstanding of a clause,
> the courts will rule according to case law and statute law, rather than
> the misunderstanding of the clause by either party.
>
> If one party has a reasonable either legal, or "common sense") basis for
> one interpretation, and the other party has a different, but equally
> reasonable interpretation, the courts will look at where the two have
> common elements in their interpretation, and go from there, to what the
> case law and/or statute law determines the ruling should be.
>
> Example:
> If the licensee thinks "Non Commercial" means that they it can be sold,
> as long as a business does not sell it, and licensor thinks that "Non
> Commercial" means that it can be sold, so long as it is not by a
> business, then the court (probably/possibly) will rule that for this
> specific case, "Non Commercial" means "may not be sold by a business".
>
> If the licensee thinks "Non Commercial" means that "can not be sold for
> profit", and the licensor thinks it means "can only be sold by a
> non-profit", then the court will look at what each side means by "sold",
> "profit" and "by a non-profit". Then look at how various statutes, and
> case law defines those terms, to come to a ruling.
>
> If the licensee thinks "Non Commercial" means that it can't be sold, but
> can be given away as an incentive, and the licensor thinks it means that
> it can't be included as an incentive, then the courts will look at both
> case law, and statute law, to determine whether or not "Non Commercial"
> rules out its usage as an incentive.

I think my questoin is being misunderstood. perhaps I did not ask it carefully 
enough, or perhaps it is too far down the thread now and the original context 
has been lost.

I can easily see how courts would and should do this in jurisdictions where 
the license is a licesne. What I don't understand is how and why it works in 
cases where the license is a contract and where a meeting of minds is 
important to the making of a contract.

Does tnat make it clearer what I am asking?
>
> > Could someone try and put together a list of such countries? Can we
> > somehow
>
> I don't remember where I saw the list.

We are still talking of the list where works will revert to the public domain 
if the CC license is deemed invalid. Right?
>
> I'd start by creating a list of the countries that have signed each of
> the copyright conventions, and the date of signing, to find countries
> that are not a party to any of them. That list (countries that are
> currently not a party to a copyright treaty) would be the first cut.
> The second cut would be countries that are only a party to one copyright
> treaty.  The third cut would be countries that are a party to two
> copyright treaties.
>
> > not let our works be covered by CC licenses in such countries? (I am not
> > sure I think this is smart, I am just asking questions to try and learn.)
>
> This is right up Mia's alley.
>
> Publishers have a long history of prohibiting distribution of their
> material in other countries. Whilst they haven't always been able to
> prevent private individuals from moving their product to other
> countries, they have usually been effective at preventing other
> publishers from publishing their material in those other countries.

It is not that I think this is a good thing, but it might be preferable to 
having our works fall into the public domain where the CC licenses are held 
to be invalid. Having them fall to "all rights reserved" is also problematic.

> [ DVDs are the most notable exception to publishers being unable to
> enforce their desires on John Q Public.]
>
> My third response is what about a clause that prohibits distribution in
> countries on the US Embargo list? [From a purely personal perspective,
> it doesn't matter to me, because anybody who distributed my material in
> an embargoed country --- with the possible exception of Cuba --- would
> be likely to get jail time, if not the death penalty, in the embargoed
> country.]
>
> xan
>
> jonathon

all the best,

drew
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