Glenn Otis Brown, April 30th, 2003
Dan’s concerns take two forms: (1) Creative Commons should do more to alert licensors to the details of our warranty provision; (2) the warranty provision is too strong for the average copyright holder — that is, it makes the licensor promise too much about the legal legitimacy of the work he or she wants to license.
(I’ll start, as I often do, by cautioning that what follows isn’t legal advice. It’s an explanation of our form licenses and the policies that led us to draft them as they are.)
Point number one is well taken. After a fresh look over the site and our Commons Deed, I think we could explain the warranty provision in a more “human-readable” way. We’ll work on it — thanks for bringing it up.
I think point number two — that the warranty provision is too strong — deserves a little more discussion.
Dan says, “The Creative Commons licenses say, in effect, ‘After checking, I guarantee no one will sue you if you copy my work, with some restrictions.’”
But the licenses aren’t quite so extreme, and the “with some restrictions” part matters. Look at the text (Section 5a):
“Licensor represents and warrants that, to the best of Licensor’s knowledge after reasonable inquiry . . . Licensor has secured all rights in the Work necessary to grant the license rights . . . “
The key word is “reasonable.” It limits liability. When our licenses were still in draft, they contained no such qualifier. After many of you wrote in concerned about that, we made it more lenient by adding the “reasonableness” clause.
I agree with Dan that using Creative Commons licenses is serious business, and I would encourage any potential licensor to think hard about what he or she is doing (and yes, if in need of individual, context-specific advice, to consult a lawyer). But I think that our warranty clause helps people take licensing seriously. When you consider that (1) anyone in the world may use our licenses (2) at no charge, a reasonable promise about the source of a work seems like a small price to pay — especially to all those licensees out there. Someone has to carry the risk, and just because someone’s a “casual” weblogger doesn’t mean that his or her readers should bear it. Right?
That said, I’m happy to have more discussion on the subject. I’m open-minded.