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[Jonathan Mitchell <website3 AT jonathanmitchell.info>]

1.While agreeing that this is a legal document, and that non-lawyers will go
to the précis, much of the language of this draft does have a certain
unnecessary exuberance ("individual or entity" indeed- why not "person"?)
and could do with a Plain English pruning. Could its drafter say what the
purpose of the paragraph "by accessing this workŠ" is? I can't see it
myself, it looks quite pointless. This isn't a shrink-wrap agreement, it's a
browse-wrap agreement as LJ Jacobs points out.

2. Rob Myers rightly observes "criticising the license for being based in UK
(English/Welsh) law is silly given the aim of making a lciense watertight
for the contributor's jurisdiction". The practical point here as I
understand it is twofold: (a) to enable the content contributor to be clear
as to potential liability in defamation etc, by providing that it is their
legal system which regulates this; (b) to provide that in the event of any
dispute it will be in one's home jurisdiction. It seems unfortunate (and
nationalistic) that these advantages are only made available for
Welsh/English users, but I have said my piece on this before.

3. The above is however contradicted by the warranty  given in clause 5 a
ii. This has not been thought through. I suspect it would have a very
different effect in the US which has a 'single publication' theory for
defamation. In any UK, indeed I think probably any European and almost any
Commonwealth jurisdiction, this subclause has the following broad effect:
    a. I publish something which is defamatory of A but protected by
privilege (e.g. a law report);
    b. B then republishes what I have written in country C where the
publication is not protected by privilege because B has no legitimate
interest to republish ;
    c. Without the warranty, I cannot be successfully sued although of
course A can sue B in country C;
    d. But with it, damages having been awarded against B, B can then sue me
under the warranty. Privilege is no longer a defence; I have guaranteed in
absolute terms that the publication was non-defamatory. And clause 6 goes on
to provide that there isn't even a limitation on my liability!
And I have to ask: why would I want to guarantee to the world that no use of
my work by them will invade the privacy of some third party, and that if it
does I will pay the damages and their related legal expenses? The language
of this clause ("defamation, invasion of privacy or other tortious injury ")
indeed assumes that "invasion of privacy" is itself a wrong that sounds in
damages (as a free-standing wrong as it does in California), not a
concession I would be inclined to make in the UK.
5 a ii should be deleted.


Jonathan
--
Jonathan Mitchell QC

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