Disclaimers and Miscellaneous

The rest of the license text concerns rather trivial legal boilerplates.²⁹⁷ Some of the clauses have no meaning whatsoever. One such clause is the requirement for a written form for waivers:

“No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.”

And:

“This License may not be modified without the mutual written agreement of the Licensor and You.”

The freedom of contract includes a freedom of form to the extent that applicable law does not require otherwise. This means that oral agreements are as valid as written ones. Parties may agree that changes to the contract are made only in written form, but they may change that agreement with an oral agreement.²⁹⁸ Typically a later agreement may overrule a previous one. In fact, a licensor could consent to a breach by sending an email or SMS to the licensee. Then again it would be the licensee’s burden of proof to show that the breach was consented to.

All CC-licenses have a rather standard-looking warranty disclaimer follow-ing the US law. CC-licenses have, since version 2.0, also a standard liability dis-claimer:

“EXCEPT TO THE EXTENT REQUIRED BY AP-PLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.”

All the details in the disclaimers may not apply outside of the US. For example, the European Union currently requires consumer contracts to use the national

297 I will return to some of them in chapter 3.

298 See, e.g., BENTLY &SHERMAN, supra note 189, at 249.

language in question, as consumers should be able to understand their obliga-tions.²⁹⁹ Also, the EU does not allow unlimited liability exceptions in consumer contracts. It is not legal to disclaim liability for actions made in bad faith. There are also minimum warranty requirements for consumer sales. From version 2.0 on CC licenses explicitly state, that:

“UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTA-TIONS OR WARRANTIES OF ANY KIND CONCERN-ING THE WORK.”

Such limitations of liabilities are in most cases legally hollow. The victim of the fraudulent licensing can claim for recourse from the original licensor as the as-surance is implied in the license. A fraudulent or ignorant licensor cannot escape the liability with the no-warranty and representation clause.³⁰⁰ The clause should be interpreted “makes no further representations or warranties…”

The first 1.0 version of CC-licenses included a limited liability clause. It shifts the burden of third party infringement claims to the original licensor. The clause states:

“By offering the Work for public release under this Li-cense, Licensor represents and warrants that, to the best of Licensor's knowledge after reasonable inquiry:

1. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the law-ful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory li-cense fees, residuals or any other payments;

2. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of priva-cy or other tortious injury to any third party.”

299 Andrés Guadamuz González, Viral Contracts of Unenforceable Documents? Contractual Validity of Copyleft Licenses, E.I.P.R. 331, 335 – 6 (2004) (discusses the consumer protection’s role with copyleft li-censes).

300 Axel Metzger, Free Content Licenses under German Law, talk given at the Wissenschaftskolleg Berlin, June 17, 2004, available at http://lists.ibiblio.org/pipermail/cc-de/2004-July/000015.html.

As noted, later versions of the licenses do not have such a clause but it is possible to attach one.³⁰¹ Unfortunately, such a warranty clause is far from bullet-proof.

If the author is unknown or bankrupt, the burden of third party liability will be, practically, on all those who are sued. This can be quite unjust especially for re-mixers and other co-authors acting in good faith. Under free licensing systems, they do not ask license fees for copies but they may still be held liable for copy-right infringements. In other words, co-authors give the work for others to use without any compensation and, in addition, may give a limited warranty for its use – again without any compensation. In short, increased liability is one of the things that can prevent community content projects from growing.

Creative Commons has been rather careful in the use of their trademark

“Creative Commons”. Enforcing strict policy is important to keep the mark dis-tinctive. Every license includes a notice that limits the use of the mark to refe-rencing to the official licenses. This is done to avoid the mark from diluting.

Strict trademark policy also provides trust to the licenses. Making changes to the licenses is allowed, but the changed licenses are not allowed to carry any refer-ence to Creative Commons. This is natural as the ease of use that the standardi-zation of the licenses provides is the key benefit of the Creative Commons licens-ing scheme.

“Creative Common notice:

Except for the limited purpose of indicating to the public that the Work is licensed under the CCPL, Creative Com-mons does not authorize the use by either party of the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons' then-current trade-mark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.”

The open source movement has had the problem of “open source” being too general to be registered as trademark. In fact anyone can claim to have an open source license. The Open Source Initiative has registered an “OSI approved” cer-tification mark which can be used only by OSI approved licenses.

301 HIETANEN,OKSANEN AND VÄLIMÄKI, supra note 156,at 55; see also Rens, supra note 34 (“[O]ne strategy to reduce this risk is making it a term of uploading the work that the person uploading should warrant the title of the work. This means that the uploader agrees to only upload non-infringing work. This constitutes an agreement altering the normal licensing conditions of a Creative Commons license. In the Creative Commons license the licensor of the work does not warrant the title of the work. This agreement applies only between the parties.”).

Creative Commons has rather stick control of who gets to use their trade-mark. Creative Commons’ logos and trademarks are used extensively by the in-ternational country projects. The country projects have signed co-operation agreements with the CC organization.

Closed captioning is a term describing systems developed to display tran-scription or other text on a television or video screen. The CC logo³⁰² closely re-sembles the Close Caption logo. Both logos are typically used in end credits of films and it might be questionable as to whether there is a chance for consumer confusion. Fortunately the Close Captioned logo was donated to the public do-main in 1996 by its owner WGBH.³⁰³

c

Figure 5. The Creative Commons logo on the left and Close Captioning symbol on the right.

302 United States Patent and Trademark Office trademark registration number 3096268.

303 Jack Foley, Closed Captioning logo, http://main.wgbh.org/wgbh/hire/symbols.html.