Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

On 28 August 2012 13:43, Gregor Hagedorn <g.m.hagedorn AT gmail.com> wrote:

On 28 August 2012 16:29, Andrew Rens <andrewrens AT gmail.com> wrote:
> Questions
>
> (1) Is there any empirical indication or anecdote that the automatic
> termination has adversely affected an innocent infringer?

I believe the total sample size of legal cases around CC licenses is
too small for this question to be a good metric. Furthermore, I
believe that CC is building an intellectual commons for the next
decades and hopefully centuries. I therefore believe the license
should be correctly modeled with a long-term perspective.

That is an important point. However there is the 'si non confectus, non reficiat principle*. Should the licences try to cater to every contingency or should they be as simple as possible?

I didn't confine the request for data to legal cases. Is there an empirical indication that a substantial number of licensees are advised by licensors that they have breached and may no longer use specified licensed works? Or is there an empirical indication that scrupulous licensees cease using works because they believe that they've disqualified themselves? If so do they approach licensors? If not then why not?

There are other uses for the data than deciding whether as crafting an appropriate response to an issue.

* If it ain't broke don't fix it

> (2) Is there an indication that a licensor has refused permission to use a
> work to someone who has infringed but cured her infringement?

Already now I would not be able re-license a work like Wikipedia
should I ever have made an error with respect to attribution.

I am not sure what you are saying here. Are you saying that you couldn't fork the whole of Wikipedia if you have ever made an error with respect to attribution in a single contribution? If so that seems to be something of a stretch.
 

The core
problem is not refusal of permission, but inability to contact
licensors which either were never reachable (anonymous contributions
to Wikipedia are copyrighted) or are no longer reachable.

So you aren't in favour of cure but instead prefer reinstatement?

> (3) What are the risks to licensors of cure periods or automatic
> reinstatement of licence if infringement is ended?

cure periods: undesirable management and documentation overhead for licensor

reinstatement: none (if reinstatement occur not retrospectively, but
from the time the conditions of the license are no longer violated).

> In particular will licensors who have already incurred costs to compel
> compliance with the license be able to recover those costs.

No. Licensors will still be able to sue for infringement during the
period the work was used without a license.

Taking a case outside of CC: A journal is printing a photographers
pictures without permission in 2011. In 2012 it aquires a license for
the whole of 2012 to use any works of that photographer. After
effectively entering into this license agreement, the photographer
detects the violations from 2011. The photographer can take the
journal to court and request compensation. In most legal system I
believe this will, however, not automatically void the contract for
2012 (although in some jurisdictions it may be possible to challenge
it, citing that the contract was agreed to under false premises - but
this is not an automatic thing.)

That is: all licenses have a start and a termination, including CC
licenses. This discussion is about starting a new period of licensed
use, not about retrospectively licensing a period during which the
licences was termination due to a violation.

Then the language of reinstatement must ensure that it is interpreted in this way.

Gregor

-- 
Andrew Rens

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