Development of Creative Commons licenses

[Andrew Rens <andrewrens AT gmail.com>]

On 29 August 2012 01:38, Anthony <osm AT inbox.org> wrote:

On Tue, Aug 28, 2012 at 10:29 AM, Andrew Rens <andrewrens AT gmail.com> wrote:
> (1) Is there any empirical indication or anecdote that the automatic
> termination has adversely affected an innocent infringer?
>
> (2) Is there an indication that a licensor has refused permission to use a
> work to someone who has infringed but cured her infringement?

It's a new provision.  It's not in 3.0.

What I am asking is whether there is any indication whether a licensor refused permission to someone who did infringe but who ceased to infringe, withdrew infringing copies etc?
So in other words is there any evidence that a licensor has refused an informal "cure"?

 

> (3) What are the risks to licensors of cure periods or automatic
> reinstatement of licence if infringement is ended?
>
> In particular will licensors who have already incurred costs to compel
> compliance with the license be able to recover those costs.

Reinstatement of the license does not mean that the copyright holder
cannot sue for the past infringement.

 

But can a licensor get an injunction for the past infringement?

Whether or not, and to what extent, the courts will allow recovery of
legal costs, is a matter of local law.

Yes it is a matter of local law but it is also a matter of how local law reads the licence. The licence should not be changed if there is a negative effect on licensors in some jurisdictions.

Whether local law will permit recovery of costs is often contingent on the behaviour of the parties to a dispute. Say that a licensor proceeds against an infringer. The licensor incurs costs. However the licensee then cures or is reinstated. A court refuses to award costs to the licensor because the problem has ceased. If this happened it would discourage licensors from enforcing the licence which in my opinion is not a good result, or discourage potential licensors from using CC licences.

I am not suggesting that these issues are an absolute bar to cure or reinstatement but that any cure or reinstatement language must take into account these issues.

-- 
Andrew Rens

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