[DMCA-Activists] Open Licensing Hot Potatoes

[Seth Johnson]

(Forwarded from Pho list.)

-------- Original Message --------
Subject: pho: Open licensing hot potatoes
Date: Fri, 23 May 2003 12:24:06 -0500
From: zrosen <address@hidden>
To: address@hidden
CC: address@hidden

So the quesion is: If someone release work under an open license - like
GPL'd 
code, or Creative Commons media - should the users of that content be liable 
if it is infringing material - or is all the liability the sole
responsibility 
of the original licensor?

GPL says the licensors are responsible - Creative Commons explicitly says
the 
original liscensor gets all the liability.

Some perturbed bloggers don't like this are are now dumping CC liscenses 
because of this Like Karl-Friedrich Lenz:
http://k.lenz.name/LB/archives/000297.html#000297
http://k.lenz.name/LB/archives/000292.html

"I think this is a serious problem which needs to be addressed quickly and 
thoroughly by Creative Commons.

This kind of warranty has no business to pop up in a license intended to
give 
content away for free. Since the licensor is not charging anything, he 
shouldn't expect to promise any extra liability to every licensee. If there
is 
any economic value to that "warranty", using a Creative Commons license
would 
mean actually paying people for using the works covered by the license. I 
don't think that's a fair deal."

And Jacques Distler:
http://golem.ph.utexas.edu/~distler/blog/archives/000153.html

"While I’m eager to see the widespread dissemination of ideas contained in 
this weblog, I’m not about to assume an open-ended legal responsibility. The 
CC License is not revokable, which is to say, if you got something from here 
between December 20, 2002 and May 1, 2003, I’m still your Sugar Daddy. From 
this day forward, however, you’re on your own."

But there is a definitive reason as to why the CC liscense had this
provision.
 Exective director Glen Otis Brown explains:
http://creativecommons.org/learn/aboutus/people#10

"One of the main goals of the Creative Commons licensing project is to
remove 
as much legal doubt as possible from the re-use of creative materials.
Another 
goal is to minimize the amount of rights-clearing that must go on in the
chain 
of creativity. Having the original licensor promise to clear these rights -- 
within reasonable limits -- furthers these goals. Letting the original 
licensor pass that risk on to all licensees undermines these goals; it
creates 
a situation in which every licensee must in fact do his or her own due 
diligence for every single transaction. What good is the license if that's
the 
case? "Feel free to use my work provided you can prove that I'm not passing 
liability on to you" -- that seems unfair, and tremendously inefficient."

Im guessing that a CC liscense or a CC-like liscense will come about with a 
slightly different hot potatoe flavour thgat a few paranoidish bloggers will 
start choose to use.  But will there be a liscense for code that comes about 
that puts that provision in?

SCO Group CEO Darl McBride sure thinks thats a good idea... (in case you
don't 
know SCO is sueing IBM for $1 billion and threatening other vendors because
of 
claims that they are infringing upon their recently purchased Unix IP. SCO 
used to be known as Caldera, makers of the Caldera Linux distrobution. 
Funny 
enough, they actually didnt stop distributing their Linux distro until a few 
months after their suit was filed against IBM.  And even funnier in a sick 
kind of way is Micrsofts recent paid liscensing deal of SCO's IP push to 
pressure other vendors to do the same......
http://www.businessweek.com/technology/content/may2003/tc20030523_2790_tc121.htm

SCO Group CEO Darl McBride:
"Q: When I talk to some people in the open-source community, they say this
is 
an attempt to overturn the way the community works. How would you answer
them?
A: I believe the way the open-source community works right now has some 
fundamental flaws that have got to be addressed. We need to address how this 
open-source intellectual property is developed, routed, and sold. Thousands
of 
software developers send code to contribute to open-source projects -- but 
there isn't a protective device for the customer using the software to
ensure 
they're not in violation of the law by using stolen code.

Basically it's a 'buyer beware' situation. The one holding the hot potato is 
the end-use customer. If the process can't provide more guarantees for 
customers, I don't think it will pass the long-term test at the customer 
level. You need some comfort level other than 'We can warrant none of this,
we 
don't know where it came from. And because you got it for free, you
shouldn't 
complain about it."

-Zack


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