Development of Creative Commons licenses

[Andres Guadamuz <a.guadamuz AT ed.ac.uk>]

Henri Sivonen wrote:

> I see multiple versions as more difficult.
>
> It seems just wrong to me that even the U.S., England & Wales,  
> Scotland, Canada and Australia have distinct licenses although they  
> share a language *and* a legal tradition.
>   
We will have to agree to disagree, I strongly believe that there are 
local distinctions in those countries that make the porting necessary. 
By the way, Scotland is a mixed legal system, more akin to Quebec, 
Louisiana and South Africa.

> Moreover, if I read those licenses and Finnish licenses and Swedish  
> licenses and French licenses and Canadian French licenses, I still  
> wouldn't know what e.g. the Dutch licenses say.
>   

I don't see your point here. I don't need to speak Japanese to know what 
the content of the BY-SA Japanese licence will be roughly like. I know 
that the licence will not be the exactly same licence as I'm familiar 
with, but I know what basseline rights are.


> Do you mean CC by "movement"? What are the stated goals other than  
> exploring the "Some Rights Reserved" spectrum (without any baseline  
> definition like the Free Software Definition)?
>   

There is a baseline definition for CC. As for the movement's goals, 
check out iCommons:
http://icommons.org/

> Your next paragraph, for instance, suggests that you can read them as  
> translations.
>   

Where needed, the ported licences act as translations, but they also are 
modified versions of the original American licences in order to 
accommodate to local legal requirements. They can be both ports and 
translation, there is no need to think of them as eihter/or. BTW, I do 
not speak for CC in any shape or form, my opinions are my own.


> What authorizes courts to apply a local license instead of the one  
> the licensor used in cases of verbatim copying (where the  
> jurisdiction change clause on derivative works does not apply)? What  
> would happen if CC did not provide ports? E.g. what happens with the  
> Sampling license?
>
>   

I'm not implying that courts will always look at the local ported 
licence even if there is a local version, but in practice this is 
something that can be done, and my argument is that this works in favour 
of the licensor. Imagine that a court in Spain needs to deal with an 
infringement case involving a generic English licence, and the judge 
does not speak English. The judge can have the licences translated. 
which will enhance costs and it will take time. On the other hand, the 
judge can look at the translated and ported version of the same licence. 
Faster, cheaper and saves time. 

As for non-existent ports, then the judge has to look at the text in 
front of him.


> Does CC believe that the approach that FSF has taken with GPLv3,  
> GFDLv2 and GSFDL is legally flawed?

Sigh! Again, I do not speak for CC, so CC does not "believe" anything, 
these are my personal opinions. As for my personal opinion, I do indeed 
think that the GPL v2 rests on shaky ground in many jurisdictions, 
something that is being solved by re-drafting efforts in version 3. I 
also believe that despite protestations to the contrary, the GPL is a 
contract in most jurisdictions.

> If CC believes that the approach FSF has taken is flawed, what's the  
> point of the "New Generic" license (which is distinct from the U.S.  
> license)?
>   

I have to return to my previous response. I think that comparing the GPL 
and CC is an exercise akin to comparing apples and oranges. I have 
already given an opinion that there are marked differences in both 
licences with regards to moral rights, target audiences and subject matter.


> If CC believes that the approach FSF has taken is not flawed, doesn't  
> it follow that CC is creating complexity for no good reason?
>   

See above. What the FSF does is their own concern. CC has chosen a 
separate route. IMO, I like CC's route better.
> You cannot see what a Finnish license says by reading a Canadian,  
> U.S., Scottish, English & Welsh or Australian license, because even  
> those five are different among themselves!
>
>   

Yes, but you can understand the general licence because you can read a 
version of the licence in your own language!


> I prefer not to litigate, but if I was in a situation where I had to  
> litigate, I'd prefer to do it in Helsinki, Finland. It does not  
> follow that the license could not be written in the English language.
>
>   

You misunderstand, you can use the English version, but you can use the 
Finnish version if you want. Personally, I would use the local version 
to make sure that if I needed to go to court it I would have a better 
chance of winning, but we have established that you prefer the English 
version. Fair enough. My point still is that what works for you may not 
work well for millions and millions of creators that do not speak 
English, and who would like to use a local version of the licence.

> If they are incompatible, how can I know what I am dealing with by  
> reading the licenses for other jurisdictions like you suggested  
> above? If they are incompatible, how can the cross-jurisdiction  
> license change clause of CC-by-sa work?
>   

By the very nature of the porting process, there will have to be 
conflicts and incompatibilities between local ports, but this is better 
in my opinion than have the entire licence (or an important pat of it) 
struck down because it is incompatible with local legislation. Most 
importantly in my opinion, judges can look at existing porting 
documentation in order to interpret the letter of the licence. IMO, one 
of the greatest achievements of the global porting effort is that I 
believe that it is the largest comparative licence drafting exercise in 
legal history. The amount of expertise and analysis in discussion lists 
such as this one can be useful for future courts when trying to decide 
on a conflict between licences.


> Because user-friendly language seems to be a generally good idea  
> unless it is specifically prohibited somewhere.
>   

I completely agree (but I'm in the UK), but I don't want to export 
drafting practices everywhere.


> Would following the stringent European rules in the U.S. be wrong?
>   

It would. In Europe, certain limitations of warranty tend to be unfair 
right away, but American warranties are much broader. I believe that 
licensors would prefer to have a blanket American warranty than a weak 
European one, while consumer would prefer it the other way round.  By 
the way, this is not unique to CC licences. IMO, the GPL's warranty 
exclusion clause is unconscionable in Europe if a consumer is involved. 
As I mentioned, the definition of what constitutes a consumer is very 
broad.

Regards,

Andres

--
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL 

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz AT ed.ac.uk
http://technollama.blogspot.com/