[okfn-discuss] Licenses and Waivers

Tue Sep 21 20:59:24 UTC 2010

Hi Puneet

On 21 Sep 2010, at 20:16, Mr. Puneet Kishor wrote:

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

Let's be clear -- I'm *not* saying that the license versus contract distinction is generally irrelevant.  What I am saying is that it is irrelevant (or at best orthogonal) to the issue of using code to describe a work[1] placed into the public domain, with terms in that code such as "waiver" or "license".

[1] Note that a "waiver" would only be accurate for works that were in copyright and whose creator has waived that work using a legal tool (CC0 or PDDL). Works that fall into the public domain due to term expiry  (or are in the public domain to begin with because out of scope) are not subject to "waivers" as there are no rights in this case to waive!

> 
> 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."
> 

I'd suggest re-reading the licenses.  CC does not recommend anywhere (AFAIK, and would be very surprised if they did) using a CC-BY license if a public domain dedication is unclear in a specific jurisdiction. This is because CC0 (as mentioned above) does have a license inside of it as a "fallback position".  It's in fact called a "Public License Fallback" and it's in section 3 of CC0:
<http://creativecommons.org/publicdomain/zero/1.0/legalcode>

The "waiver" language that you see on the "Human Readable" page is not the actual license.  That's here:
<http://creativecommons.org/licenses/by/3.0/legalcode>

This language on the human readable page is a tad misleading in the context of talking about the public domain, because strictly speaking it isn't referring to a waiver (IMO) in giving up rights forever, but rather the simple situation that as CC-BY is a license, you can go and contact the licensor and ask them to alter the terms or give you a different license. Really it should be that you could seek a "variance" or some such from the copyright holder.

That same language on waiver is on the CC-BY-NC human readable page for example:
<http://creativecommons.org/licenses/by-nc/3.0/>

In that case they *certainly do not mean public domain waiver (which of course the licensor could do) but rather the idea that if you want to use the work commercially, you go back to the licensor and ask them for a commercial license.

The public domain language on both of the human readable license pages is simply saying that if there's a public domain portion ("free from copyright") of the work being licensed, it stays in the public domain.  CC tries to capture this concept in section two of the license on "Fair dealing".

"2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws."

Note that the Open Data Commons BY license has its fair dealing language in section 6 at:
<http://www.opendatacommons.org/licenses/by/1.0/>
(it's in the ODbL as well)

Thanks

~Jordan

> 
> 
>> 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
> Carbon Model http://carbonmodel.org
> Charter Member, Open Source Geospatial Foundation http://www.osgeo.org
> Science Commons Fellow, http://sciencecommons.org/about/whoweare/kishor
> Nelson Institute, UW-Madison http://www.nelson.wisc.edu
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