Creative Commons Canada

["David Fewer [c]" <dfewer AT uottawa.ca>]

Hi, Russell.  

It is not entirely clear to me what you mean by the "jurisdiction problem".
There are a number of jurisdiction issues associated with ANY contract, not
just with cc/ca licenses:

- What law should a court use to interpret the contract?  We assume a court,
but it is really anyone trying to devine the intentions of the parties to
the contract.
- where should a court hear the case?  What forum?  The answer is that
within the contract the parties can designate the forum (we can say that we
agree that any dispute should be heard by a Superior Court of Ontario in
Leeds-Grenville counties, and that we attorn (submit) to that court) or even
restrict the forum (no litigation - irrevocably submit to arbitration under
designated rules).  If the parties are silent, a court will entertain a suit
on its own rules.  In Canada and most common law countries, the court will
look for a "real and substantial connection" between the forum's
jurisdiction and the subject matter of the suit.  Does one of the parties
reside in the jurisdiction?  Was part of the contract performed in the
jurisdiction? Etc.  You can see why cyberspace creates problems for this
sort of analysis - there's very little "there" there.

So, when you say:

>  A work is not licensed under a "commons deed" or the AT-SA/etc labels,
> it is licensed under specific legal code.  

you're not quite right. You see, a license - any contract - does NOT
automatically specify the legal code; it specifies an internal code -
internal to the contract itself.  A contract is just an agreement, a bit of
language, between two parties.  To the extent that a license automatically
invokes a code, the code is within the language (English, French, Swahili)
the parties use - when I say (and you agree) that "you may not copy this
program", we turn to English - not copyright, not the common law or any
legal code - to figure out what we've just agreed.  Interpretation of the
contract is the task of devining (interpreting, understanding) the parties'
intentions.  Now, language is not precise.  Ambiguities abound in English
(how close is "near"?  What does "non-commercial" mean - does it foreclose
"cost recovery"? Etc.).  Similarly, parties do not always turn their minds
to every situation with precision.  Accordingly, we need rules to interpret
contracts when these sorts of issues come up.  Rules offer stability and
consistency in interpretation.  Parties to a contract can agree which rules
should apply, or not.  Courts (or arbitrators) will generally apply the
interpretational rules the parties agree to.  If the parties have not
specified a set of rules, Courts (or arbitrators) will provide a set of
rules, and will do so according to their own rules for figuring out which
rules to select.  Actually, courts don't provide the rules, they apply the
rules - but now we're getting into legal theory and we don't want to go
there. 

The CC/CA license provides in s. 8(g) that "The construction, validity and
performance of this [Agreement] shall be governed by the laws in force in
Canada."  So, parties to the cc/ca license automatically say that Canadian
contract law governs interpretation of the contract.  Note that contractual
interpretation is a matter of provincial jurisdiction - the cc/ca license
doesn't actually designate the rules of interpretation, it just narrows them
down to 13.  With a Canadian federal law backdrop.  But still, better than
nothing.

Ah, but then you say: 

> If I chose the Canadian license
> and you are an Australian, then only if I somehow manage to ensure that a
> case involving this work will only be heard only in Canada will the
> license be interpreted within the country compatible with the license.
>
>  If you manage to get a case heard in Australia, then we have the same
> problem of licenses being incompatible with the domestic legal code.

But you confuse two things:  forum (where the case is heard) and code (the
rules of contractual interpretation applied to devine the parties'
intention, as stated within the license).  The CC/CA license is silent as to
forum.  Most contracts aren't, and it's a bugger.  Why should I submit to
the laws of Redmond, Washington, merely for having Windows on my computer?
But that is essentially what I agree to when I click my click-wrap license,
or when I (used to) peel off my shrink-wrap.  CIPPIC is actually involved in
a project examining these sorts of unfair terms.  But here's the kicker - if
we don't specify forum, then theoretically *any court in the world* can hear
a lawsuit involving interpretation of our contract.  Now, courts like to
manage their own affairs, and Australian courts don't like settling Canadian
disputes.  So, generally courts will only hear cases that have some "real
and substantial connection" to their jurisdiction.  Usually this is easy:
an Ontario Court will say "he's in Ontario, she's in Ontario, it's in
Ontario, we're all in Ontario - why don't we go out on a limb and hear this
case?"  Sometimes it's not:  "he's here, she's there, it's somewhere else,
they all "agreed" in cyberspace."  Is "he" being "here" a real and
substantial connection?  Usually, but not always.  Some jurisdictions take a
very aggressive stance on jurisdiction, with "long-arm statutes" granting
jurisdiction to their courts to hear cases that have only tenuous
connections to the jurisdiction.  Texas comes to mind.  Never piss off a
Texan consumer.  So, you are right - merely choosing cc/ca doesn't guarantee
the case will be heard in Canada - but that's not what the cc/ca tries to
do.  Cc/ca just says that wherever you are, you'll use Canadian laws to
interpret the license.  So, your Australian court will apply Canadian laws
of contractual "construction, validity and performance".  Aside from the
fact that very few Australian judges are likely to have experience in
Canadian law, Australian judges feel very competent to perform this
interpretational task.  Judges don't feel that any interpretational task is
"incompatible" with their function.  Things get dicier when we're talking,
say, Canadian court/German law, or Canadian court/Chinese law, or (god
forbid) Chinese Court/Iranian law.  But these aren't "compatibility" issues;
rather, they are "competency" issues.  Creative Commons does it's best to
offer the world keys to understanding the substance of the license (i.e.,
the substance of the parties' agreement):  the first key is the language:
English;  the second key is the legal code:  Canadian contract law.  Apply
these two keys, regardless of where you are (and, again, the license doesn't
care where you are), and you should be able to interpret the parties'
intent.

But then you go on to say:

> The Linux kernel as one single project has contributions from citizens in
> a large number of countries, and thus has parts that can be seen as under
> the jurisdiction of all these countries.  What does the composit license
> look like, or are you suggesting that the work is licensed "in the legal
> code compatable with the country of the court", a legal concept of license
> jurisdiction auto-detection which I don't believe exists anywhere.

This is a real problem with open source, and it is one of the reasons that
it has not been adopted with open arms by commercial users.  Linux does not
offer certainty of title.  

Let's take a fictional work:  Baby-Linux.  It has two authors: one Canadian,
one US.  Every jurisdiction in the world has it's own rules for attributing
ownership of IP in Baby-Linux.  If both authors are contractors under
work-for-hire agreements, even the rules of Canada and the US differ as to
who is the first owner of copyright in the author's contribution (no such
thing as a "work-for-hire" under Canadian law, so the author remains the
first copyright owner of his contribution in Canada; in US, copyright in a
"work-for-hire" belongs to the company, not the author).  You could have
joint ownership of IP in Baby-Linux with different owners in different
countries.  Now, throw in the fact that commercialization rules differ in
each country (are all authors required to license Baby-Linux, or can each
author separately license?), and you're right.  It's a mess.  But so what.
That has nothing to do with cc/ca.  That's just the mess that is copyright.


But, recall, all this is just to determine ownership of copyright at first
instance.  There is the contractual layer that overlays this:  if everyone
has signed contracts licensing or assigning ownership, that may help clarify
(or muddy) where ownership of the IP in Baby-Linux lies.  Now let's consider
the legacy IP in Linux.  No, you're right, let's not - it's too damn scary.
Hundreds, thousands of authors; some have contracts, some don't, some did
but who the hell knows where the contracts are now.  Who owns Linux,
unencumbered?  Nobody.  Everybody.  It is a work of joint authorship and no
one could even tell me who all of the authors are, let alone who all the
owners are.  The only hope is that *every* contribution to the code occurred
under a license (or assignment), and every such licensor (or assignor) was
in fact the owner of copyright in the contribution.  

I'm not sure what you mean by the "legal code compatible with the country of
the court" - if you just mean national law, then yes, court's "auto-detect"
their own national law.  I suspect you are really talking about the
contractual overlay - the various agreements that cover who is going to own
what, or license what.  Court's will interpret those contracts according to
the rules of contractual interpretation noted above.  For something as big
and as complicated as Linux, this is a monumental task.

Finally, to complete your tour-de-force of modern day private international
law jurisdictional nightmares, you continue:

>  Unless I am missing something, I don't quite see how CC solves the huge
> legal jurisdictional problems that exist not only under PCT laws but also
> many other laws.  

"PCT"? Patent Co-operation Treaty?

>We have seen a number of quite weird tort cases where
> the claim is that if someone in a given country can see some material that
> it is covered under the tort laws of that country.  I as a Canadian can be
> found guilty of violating United States law even though the same activity
> is not illegal in Canada, and that I don't intend to set foot in that
> country until certain legal issues are fixed.

Ah, tort law is not contract law.  Tort claimants have no contractual
relationship to the defendant, or in any event, any contract between the
parties is irrelevant to the tort claim, *unless it is covered off in the
contract*.  The limitation of liability clause in the cc/ca license looks
like this:  "EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR
DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE
WARRANTIES IN SECTION 5, 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 LICENCE OR THE USE OF THE WORK, EVEN
IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."  So, "on
any legal theory" captures tort law theories, and covers claims "arising out
of . . . the use of this work".  Aside from the fact that court's don't
really like limitations of liability (someone gets screwed: it doesn't seem
fair that a click-wrap should waive your right to sue for damages for, say,
personal injury), this covers most tort claims the parties to the contract
might come up with.  It doesn't cover third party claims against you (though
it partially covers third party flow-through claims - i.e., 3P sues your
customer, customer sues you).  So, yes, tort lurks in the background.  And
as to jurisdiction, we are liable in tort in those jurisdictions to which we
bring ourselves.  If we are making hard core porn available to Iranians, we
can't expect to insulate ourselves from tort claims in that country, except
to the extent that we cover ourselves off by contract.  Whether or not the
Iranian court will give effect to that contract is another question, which
really speaks to the wisdom of traveling to Iran if you are a hard-core
pornographer.  Or traveling to the US if you are an encryption researcher.

David Fewer

Legal Counsel
Canadian Internet Policy & Public Interest Clinic
University of Ottawa, Faculty of Law
57 Louis Pasteur St.
Ottawa, Ontario  K1N 6N5

Ph:  (613)562-5800 (ext.2558)
Fax: (613)562-5417

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