[cc-licenses] choosing a new license at freesound, please help

Peter Brink peter.brink at brinkdata.se
Thu Oct 26 09:14:11 EDT 2006

Bram @ Freesound skrev:

> No, I'm interesting in worldwide law. While the *server* of
> freesound might be in Spain, both *uploaders* (all 822 of
> them and rising) of sounds and *downloaders* (all 180000 of
> them and rising) are very much spread worldwide. I'm
> guessing –hoping!- that the particular location of our
> server has no legal repercussions on freesound as a whole.
> If this issue is relevant -> If the location of the server
> is of essence then what happens when we start setting up
> mirrors elsewhere?

Unfortunately the site of the server and the locations of the mirrors do
matter. In Europe the assumption seems to be that the physical location
of the server is what matters when deciding what copyright law applies
to the contents of the server. This assumption might not be true in the
US... Also it's the law of the country for which protection is sought
that is applicable when a non-contractual obligation arises from an
infringement of an intellectual property right. That is it's the law
where the violation was committed that matters. Unfortunately this rule
is not, AFAIK, accepted by the US government...

The location of the up- and downloaders doesn't matter (at least not in
here in Europe), what matters is where the samples have been published.
So if someone accuses freesound of publishing a copyrighted sample, then
Spanish law would apply. If someone in the US would put up a mirror of
freesound (in the US) then the contents of the Spanish site would be
*republished* in the US, and then most certainly US law would apply.

If you would apply a license to the samples you add a layer of
complexity to the issue. The "choice of law" rules are different when we
talk about contracts. This is the realm of international private law
which is a complicated field of legal science but, as far as the EC
goes, one could put it like this (to quote myself from an earlier mail
"[i]n Germany [for example] a court would base its decision on the
choice of law by examining where the 'party who is to effect the
performance which is characteristic of the contract has, at the time of
conclusion of the contract, his habitual residence, or, in the case of a
body corporate or unincorporate, its central administration.' (art. 4.2
of the Convention on the Law Applicable to Contractual Obligations).
AFAIK if the work is merely distributed, then this would mean that the
law of the licensor would be chosen, but if the work has been adapted
(or in any other way heavily transformed) then the law of the licensee
would be chosen."

/Peter Brink

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