[okfn-discuss] Licenses and Waivers

Mr. Puneet Kishor punkish at eidesis.org
Tue Sep 21 19:16:54 UTC 2010

On Sep 21, 2010, at 1:22 PM, Jordan's Lists wrote:

> Just add to this, as IAALBIANYL [1]
> On 15 Sep 2010, at 15:30, Mr. Puneet Kishor wrote:
>> IANAL, but from what I understand, a license is not a contract, and a license is not a waiver [1-4].
>> Creative Commons specifically terms CC0 as a waiver of license, while its traditional CC licenses are, well, licenses. 
>> It is common but inaccurate assumption to think of licenses the same as contracts.
>> Copyright is a license, and is governed by federal laws in the US. A contract requires at least two parties to agree to certain terms and conditions, and is governed by state laws in the US.
>> According to my law dictionary, a license is a unilateral permission granted by a property owner to do certain things with the licensed property.
>> A waiver is the absence of a license.
>> I wish this confusion were resolved, and the popular usage and the bookish definitions would come into conformance.
> The license/contract thing is irrelevant here.  If you'd like to learn more about the issue, I can recommend several article by Andres Guadamuz looking at license/contracts, including:
> Guadamuz, Andrés, The License/Contract Dichotomy in Open Licenses: A Comparative Analysis (April 2, 2009). University of La Verne Law Review, Vol. 30, No. 2, pp. 101-116, 2009. Available at SSRN: http://ssrn.com/abstract=1372040

Thanks for the above. This should be useful weekend reading. 

That said, I do hope that the license/contract distinction is irrelevant, but fear that it might not be so. In the end, the cookie crumbles when someone takes me to the court (until then, we are all waving our hands in the air). Depending on the perceived violation, I could be taken to a Federal or a State court, which may or may not matter.

This is the problem -- most of us are not lawyers, and hope that prefixing what we write with IANAL will save our butts. But most of us don't really understand what would happen if our butts were dragged into a court by someone overly litigious. The best case is to avoid any chance of this in the first place.

> For the license versus waiver issue, the structure of BOTH the PDDL and CC0 is to also include a license alongside the public domain dedication.  The PDDL is just much more up front about the fact that this is inside the legal terms (as its in the name).
> The license component in both cases is as broad a license as you can imagine and effectively like the public domain.
> The reason why a license is included alongside the public domain dedication is that it is not effectively clear in every jurisdiction that a public domain dedication will work.  It turns out giving up your rights in copyright is harder than you might think.  Including a license is a belt and braces approach to making sure that people who would like to place their work in the public domain can effectively do so.

Indeed, a very counterintuitive (to me) but, in some ways, bizarrely understandable logic behind this inability to give up one's rights in some jurisdictions.

The Creative Commons recommendation in these cases is to use CC-BY 3.0 [http://creativecommons.org/licenses/by/3.0/] which includes the following clauses --

"Waiver — Any of the (license) conditions can be waived if one gets permission from the copyright holder.
Public Domain — Where the work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license."

> How you describe this technically, I'd say could go either as a waiver or a license, or even both (as it is both).
> Thanks!
> ~Jordan
> [1] http://www.jordanhatcher.com/legal/iaalbianyl/
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Puneet Kishor http://punkish.org
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Nelson Institute, UW-Madison http://www.nelson.wisc.edu
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