Development of Creative Commons licenses

[email AT greglondon.com]

Evan Prodromou said:
> If it turns out that you did copy someone else's work
> without permission (or abuse privacy rights, or libel
> someone, or whatever), and that person sues your
> publisher/label/magazine, the publisher/label/magazine
> can turn around and sue you.

hm, that's how I've heard it described so far, and
I don't see it having any real effect.

Alice, Bob, and Charlie are all contributers to a
Open Movie project. They put a lot of work into
the project and create an Open Content Movie titled
"Haunted Blender".

Ike-Incorporated sees this and decides that he could
sell DVD's of the movie, make a little bit of money,
and get some press for the movie project. He stamps
out some DVD's, and sells a whole bunch, making a
decent profit for his investment risk.

ParamountPictures files a lawsuit against Ike-Incorporated
because it turns out that "Haunted Blender" contains
footage from their movie "Ghost" starring Patrick Swayze.

Ike does some investigating and discovers that
StupidSteve contributed the clip to the project,
but no one recognized it as stolen footage.
Patrick Swayze's acting was so bad, everyone thought
it was just an amatur actor who looked like him.

A court rules in Paramount's favor, and orders Ike to
pay Paramount a sum equal to all his profits plus
legal expenses for Paramount.

Now, if I have this correct, indemnification means that
Ike-Incorporated could now sue StupidSteve for whatever
he had to pay Paramount. But this has a couple of
basic problems.

(1) Steve probably doesn't have that kind of money, so if
Ike pursues and wins a lawsuit against Steve,
Steve will file bankruptcy and Ike will never see a dime.
So the point is mute, financially.

(2) If Steve was really stupid, and not malicious,
then Ike suing him will be nothing but possible
bad press for Ike. Remember, Ike took a financial
risk on the project to make some money and to
support the project. Ike likes the Open Movie concept.
And supporting it has generated Ike some good karma.
Suing an overeager but brainless contributer could
be seen as biting the hand that feeds you.

These two concerns seem to point to indemnification
being of no value to Ike.

on the other hand,

If Steve's intent was malicious, for example,
he might be the paid lackey of WarnerBrothers who
wants to see OpenMovies die a miserable death,
then Steve would be subject to possible criminal
prosecution for misrepresenting copyright information.
And Warner Brothers would be subject to horribly
bad press, at the very least. So, indemnification
may work here, but there are other recourses to
the law for this case already.

That's Ike's point of view.
then theres Alice, Bob, and Charlie's point of view:

To me, saying "Copyright 2004 Greg London" is a
declaration that the work is mine. and copyright
law makes it a crime to misrepresent that.

But its a whole other step to say:
"If my stuff turns out to be someone else's propery,
you can sue me to recover anything you had to pay
out in a lawsuit."

because it's a lawsuit happy world, and who's to
say that ALL of Ike's damages were the result of
solely MY contribution?

it's a weird variation of the "hostage scenario" in
game theory. If any single hostage draws attention
to themselves and tries to resist the hostage taker,
he'll likely get himself killed. If everyone stood
up at once and attacked the hostage taker at the
same time, the group would likely win. But the first
individual would probably die, so no one does it.

the first person to offer indemnity is opening
themselves to the brunt of any lawsuit. if the
others do not offer indeminity, they'll likely
not be the first to be sued by Ike trying to
recoup his losses.

If Steve did the infringment, but Alice offers
indemnity, then would Alice open herself up to
be sued by Ike for Steve's stupidity? if you
can sue for anything, a warranty of indemnification
from Alice might be just enough to focus Ike
on her.

If EVERYONE offered indemnity, then Ike would
probably go after Steve, but from the contributer's
current position, its a 'hostage scenario' where
the first person to draw attention to themselves
is open to a world of hurt.

To make matters worse, if StupidSteve did not
contribute directly to "Haunted Blender", but
instead contributed to some OTHER project that
Alice, Bob, and Charlie then used with the
assumption that the work is legit, then
Alice, Bob, and Charlie are WIDE OPEN to
being the first target of Ike's lawsuit.

Since it acts like a chain or a domino effect,
Ike would sue ABC, and ABC would then sue Steve.

And from Alice's point of view, she's thinking
"Why draw attention to myself when Steve caused
the problem?"

The last thing you'd want to say to a possible
aggressor is "Bring it on." Unless you're the
president and have 24 hour Secret Service protection
for life, and knowing that saying "bring it on"
will actually bring attacks on your military,
not you the president, you're only opening
yourself up to potential hurt. As president,
it's good because it makes you look tough at
someone else's expense.

But for the volunteer contributer, indemnification
will first occur as a hostage scenario (first person
to offer it will get sued) and second as volunteering
to be sued for someone elses stupidity.

And it doesn't solve the problem of protecting
Ike, Alice, Bob, and Charlie from being sued by
Paramount. If it worked so that Paramount had
to directly sue Steve, then maybe it would fly.
but as it is, it seems to be problematic.