Development of Creative Commons licenses

[Gregor Hagedorn <g.m.hagedorn AT gmail.com>]

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.

> (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. 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.

> (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.

Gregor