Development of Creative Commons licenses

[Sarah Pearson <sarah AT creativecommons.org>]

Thank you both for your comments. A few responses intended to provide background about our thinking.

>Is it just me, or is it ambiguous as to what constitutes "discovery of
the violation"?

There is some ambiguity in what constitutes "discovery of the violation," but some of this was intentional. We felt that this approach helps to avoid putting the sole burden on licensors to police use of their material. Under the language in 4.0d3, the 30-day window would start when a third party notified the licensee she was in violation, or when the licensee herself realized the problem.

As you noted, this is in contrast to the GPLv3, which puts the onus on the licensor to notify the licensee of the violation within a certain amount of time in order to permanently terminate the license.

>Doesn't this create a potential loophole by allowing a willful
fraudulent licensee to keep anyone intending to enforce the license at
large by playing cat-and-mouse?

We certainly hope not. Tying the cure window to discovery of the violation is intended to prevent willful violators from getting their rights back. In other words, the intent is that once a licensee knows they have committed a breach, the 30-day window starts running and does not restart once they breach again unless they do so unwittingly.

Also, note that the language explicitly reserves the right of licensors to seek remedies, so in the hypothetical you raise the licensor would always have the option of pursuing an injunction or damages for the non-compliance. There is no obligation to wait until the 30-day window is up.

Sarah

On Fri, Feb 22, 2013 at 7:11 AM, Anthony <osm AT inbox.org> wrote:

On Thu, Feb 21, 2013 at 6:00 PM, Sarah Pearson
<sarah AT creativecommons.org> wrote:
> Specifically, licensees
> have 30 days after discovering a problem to correct it and regain permission
> to use the licensed material. The 30-day window is designed to give
> licensees a reasonable amount of time to fix the problem. The window begins
> running after discovery of the problem because it is designed to help
> innocent rather than willful violators.

Is it just me, or is it ambiguous as to what constitutes "discovery of
the violation"?  Specifically, whether innocent violation excuses
ignorance of the law/contract-terms, or merely ignorance of facts.
And assuming we're talking about ignorance of the law/contract-terms,
does the ignorance have to be reasonable?

Some sort of notice provision more like the GPL would be a much more
objective test.