Development of Creative Commons licenses

["Todd A. Jacobs" <nospam AT codegnome.org>]

I'm coming to this debate rather late, so please forgive me if this is a
bit of a dead horse. I just wanted to voice my opinion in favor of
*removing* the warranty clause, and explain why.

The problem I have is that, as a content provider, I am *always* liable
for possible infringement. The merits of the suit aren't at issue; the
point is that I can always be sued whether it's a legitimate claim or not.

IANAL, but as I understand it, the law makes a distinction between
purposeful and accidental infringement. If I warrant that there is no
possible infringement, I put myself in the position of being unable to
defend myself with a claim of innocent infringement, even if such is the
case.

Even where the law doesn't make such a distinction, I am concerned by the
idea that someone not a party to an infringement (e.g. a licensee instead
of the putative copyright holder) could sue based on some theory of
warranty arising out of the license. This would obviously be a bad thing.

And finally, I have yet to attend a play or read a book where I was
provided with a warranty of any kind. I've also never seen a best-seller
that warrants that the author is in fact the author, or heard a song on
the radio where the singer guarantees--before singing a note--that she's
executed contracts with the lyricist, the record company, and all the rest
before she recorded her latest hit.

At the other end of the spectrum, I have occasionally seen books that
disclaim responsibility for errors and omissions, or disclaim warranties
of fitness for a particular purpose, and feel that such disclaimers are a
good idea that in no way encourage deliberate infringement.

I think that using the license to create *additional* liability above and
beyond existing copyright law, regardless of the motivation, should be
avoided at all costs. Please keep this in mind when working on the next
draft.

-- 
Todd's "Customer Disservice Hall of Shame" currently contains:
    - Charter Communications: Mislead their customers about service
      levels, block normal Internet connectivity, and exhibit excessive
      downtime.
    - AT&T: Honoring the "checks" they send out to entice you to switch
      long-distance providers is apparently optional.
    - eFax: Receive (not send) 20 pages of *unsolicited* faxes, and lose
      your account.