4.0/Disclaimer of warranties and related issues - Revision history

Kat Walsh: /* Summary */ more past-tensing

2013-12-09T18:50:22Z

‎Summary: more past-tensing

Kat Walsh: avoid redirect

2013-11-20T00:46:05Z

avoid redirect

Kat Walsh: fmt

2013-09-10T18:07:51Z

fmt

CCID-shinchpearson at 17:04, 10 September 2013

2013-09-10T17:04:54Z

Kat Walsh: /* Summary */ rm redundant text

2013-05-20T18:03:57Z

‎Summary: rm redundant text

Kat Walsh: less ugly format

2013-05-20T17:45:13Z

less ugly format

Kat Walsh: fmt

2013-05-20T17:39:34Z

fmt

Kat Walsh: collapse drafts 1and 2; add headers

2013-05-20T17:38:56Z

collapse drafts 1and 2; add headers

CCID-shinchpearson at 17:27, 14 February 2013

2013-02-14T17:27:33Z

Kat Walsh: +draft 3

2013-02-14T04:34:45Z

+draft 3

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 From 2.0 to the present 3.0 versions, licensors expressly disclaim all warranties both express and implied, and limit to the fullest extent possible all liabilities and damages, but only to the extent allowable under applicable law.  Note that the laws of many jurisdictions limit or preclude disclaimers of warranties.  Thus, the current (2.x through 3.0) default treatment is, at best, a complete disclaimer, but more frequently a partial disclaimer or no dislcaimer at all depending on the local law that applies.
-Creative Commons does not plan to deviate in 4.0 from the current 2.x to 3.0 treatment absent a compelling proposal that takes into account chilling effects and other costs of reversing course.  That said, CC does recognize that a return in whole or in part to the representations and warranties in version 1.0 is desired by some in the community and among the affiliates.  For that reason, we seek the views of those both in favor of and against changing course in 4.0, subject to the high bar that we feel is appropriate to set for any major change to the licenses from 3.0.
+Creative Commons chose not to deviate in 4.0 from the current 2.x to 3.0 treatment, as after considering chilling effects and other costs of reversing course, no proposal was compelling. However, CC recognized that a return in whole or in part to the representations and warranties in version 1.0 has been desired by some in the community and among the affiliates. After seeking opinions, representations and warranties were not added, but a section cautioning potential licensors and licensees before using the CC licenses was added to the introductory text to the licenses.
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 * Create additional tools (such as options for additional metadata and/or symbols on the deed) to facilitate marking. It may be desirable for CC to design some visual indication a licensor may use when a work may be subject to additional rights and create additional tools for licensors and platforms who wish to use this marking.
-* Additional FAQs and best practice guidelines from CC. Licensors are already admonished to be careful before applying CC licenses, in the FAQs, at the top of the new Chooser and (on a dedicated page linked to from the FAQs [[Before Licensing#Make_sure_you_have_the_rights]]). CC and its affiliates could create still more detailed guides, highlight those more prominently on the Chooser and elsewhere, and engage in outreach to licensors promoting best practices and how-to documents on how to identify and clear rights, and mark their works in a more informative manner for licensees.
+* Additional FAQs and best practice guidelines from CC. Licensors are already admonished to be careful before applying CC licenses, in the FAQs, at the top of the new Chooser and on a dedicated page linked to from the FAQs: [[Considerations for licensors and licensees]]. CC and its affiliates could create still more detailed guides, highlight those more prominently on the Chooser and elsewhere, and engage in outreach to licensors promoting best practices and how-to documents on how to identify and clear rights, and mark their works in a more informative manner for licensees.
 === Proposals for disclaimer of warranties in 4.0 ===

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 Based largely on feedback from the affiliate community, we have eliminated the ability of licensors to customize the disclaimer of warranties and limitation on liability. Licensors may, of course, offer warranties or additional disclaimers, but those additional terms will not form part of the CC license itself. To help ensure the license operates as intended internationally, we have added a rule of interpretation to the license that says the disclaimer and limitation of liability should be interpreted in a way that most closely approximates an absolute disclaimer and waiver of liability. We have also made a few other slight language adjustments to those provisions for international enforceability purposes.
-We have clarified that the provisions in the “Using Creative Commons Licenses” section are not part of the license itself, in order to avoid any misunderstanding that those considerations are enforceable obligations.  Additionally, the “Considerations for the public” section now indicates that where special requests are made by the licensor -- such as to mark or describe any changes that have been made -- that licensees should respect those where reasonable.
+We have clarified that the provisions in the “Using Creative Commons Licenses” section are not part of the license itself, in order to avoid any misunderstanding that those considerations are enforceable obligations.  Additionally, the “Considerations for the public” section now indicates that where special requests are made by the licensor&mdash;such as to mark or describe any changes that have been made&mdash;that licensees should respect those where reasonable.
 }}

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 |}
-{{Infobox|
+{| class="mw-collapsible mw-collapsed wikitable"
 ===Draft 3===
 In this draft, as in the previous drafts and prior versions of the license after 1.0, representations and warranties are not included. This decision was made after careful consideration of the arguments made in support of changing course on this issue. Our reasoning rested on several important factors.
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 Additionally, even if we were to include an affirmative warranty in the license, it may not provide a meaningful safety net for licensees in many instances. Some licensors may not be aware of all third party rights, or they may not even understand the issues. Other licensors may be impossible to locate or may not have the resources to compensate licensees that seek recourse from them. Yet the inclusion of a warranty could give licensees the impression that they can use the licensed material without legal risk, which is not the case.
-Ultimately, our goal in all of this is to encourage licensors to behave properly, clearing rights and marking third party content wherever possible. To help accomplish this, we have inserted an informational section before the license begins that is designed to inform license users of important considerations. The section highlights the same licensing considerations CC has always emphasized, but we feel that featuring them prominently at the top of the legal code will help raise awareness, both of best practices for licensors and of the limitations of the license for the public. We feel this is the best approach to deal with this complicated problem without including a representation and warranty in the license text itself. }}
+Ultimately, our goal in all of this is to encourage licensors to behave properly, clearing rights and marking third party content wherever possible. To help accomplish this, we have inserted an informational section before the license begins that is designed to inform license users of important considerations. The section highlights the same licensing considerations CC has always emphasized, but we feel that featuring them prominently at the top of the legal code will help raise awareness, both of best practices for licensors and of the limitations of the license for the public. We feel this is the best approach to deal with this complicated problem without including a representation and warranty in the license text itself.
 ==Overview==
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 * Cons:
 * '''Treatment in 4.0 d.3:''' No representation or warranty inserted, but introductory section added to encourage good behavior by licensors and to educate licensees. Decision explained in more detail in summary at the top of the page.
 ''Please add other Disclaimer proposals here, and number them sequentially.''

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 ==Summary==
 <div style="padding: 1em; margin-bottom: 1em; border: 1px dotted red; background-color: #eee; width: 97%;">
-'''Page summary:''' The CC 1.0 license suite includes explicit representations and warranties by the licensor as to the rights being licensed, and holds the licensor responsible in the event rights have not been properly cleared.  This treatment changed starting with 2.0, and has continued unmodified up to and including the 3.0 license suite.  The decision to eliminate representations and warranties by licensors was the result of a long (and sometimes passionate) debate during the 2.0 versioning process, and is explained nicely in this [http://creativecommons.org/weblog/entry/4216 blog post.]
+The CC 1.0 license suite includes explicit representations and warranties by the licensor as to the rights being licensed, and holds the licensor responsible in the event rights have not been properly cleared.  This treatment changed starting with 2.0, and has continued unmodified up to and including the 3.0 license suite.  The decision to eliminate representations and warranties by licensors was the result of a long (and sometimes passionate) debate during the 2.0 versioning process, and is explained nicely in this [http://creativecommons.org/weblog/entry/4216 blog post.]
 From 2.0 to the present 3.0 versions, licensors expressly disclaim all warranties both express and implied, and limit to the fullest extent possible all liabilities and damages, but only to the extent allowable under applicable law.  Note that the laws of many jurisdictions limit or preclude disclaimers of warranties.  Thus, the current (2.x through 3.0) default treatment is, at best, a complete disclaimer, but more frequently a partial disclaimer or no dislcaimer at all depending on the local law that applies.

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 </div>
 {| class="mw-collapsible mw-collapsed wikitable"
-! (expand to read)
+! (expand to read Draft 1 treatment)
 |-
+|
-{{Infobox |'''Draft 1 Treatment:'''  The language has been simplified but is intended to operate and have the same scope as its counterpart in 3.0.  We are mindful that a complete disclaimer and limitation of liability may not be allowed depending on local law, and accordingly have prefaced the provision with the qualifier found suitable by several jurisdictions for 3.0 ports, “To the greatest extent permissible,...”  We expect that for some, this provision may be inadequate.  We want to hear ideas on both improving this provision, and the proposal for allowing additional terms to the license to allow for more specialized language to be included by licensors.}}
+{{Infobox |
 |}
 {| class="mw-collapsible mw-collapsed wikitable"
-! (expand to read)
+! (expand to read Draft 2 treatment)
 |-
+|
 {| class="wikitable" cellspacing="0" cellpadding="5" width=100%
 |valign="TOP" style="background:#FFDADA;border:5px #FDAFAF;padding:1em;"|
-'''Draft 2 Treatment:'''' No change in Section 4 language itself.  However, we have added a new Section 6(b) that permits licensors to disclaim or offer warranties or to limit liabilities differently from Section 4.  This is intended to ensure licensors can tailor those provisions in the manner most suitable based on differing consumer protection laws that may apply to them and have those changes be deemed part of the license itself.
+===Draft 2===
 '''Post 4.0d2 update:''' During the post-d2 discussion period, several affiliates and community members proposed changing the language to require documentation of third-party rights. Discussion around the issue was then opened up on the list, including discussion of the very different treatment in 1.0.
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 |}
 ===Draft 3===
 In this draft, as in the previous drafts and prior versions of the license after 1.0, representations and warranties are not included. This decision was made after careful consideration of the arguments made in support of changing course on this issue. Our reasoning rested on several important factors.

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 '''Post 4.0d2 update:''' During the post-d2 discussion period, several affiliates and community members proposed changing the language to require documentation of third-party rights. Discussion around the issue was then opened up on the list, including discussion of the very different treatment in 1.0.
 |}
 == Disclaimer of warranties and related issues==