Development of Creative Commons licenses

[jonathon <jblake AT eskimo.com>]

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.

> Could someone try and put together a list of such countries? Can we somehow 

I don't remember where I saw the list.

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.
[ 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