Difference between revisions of "4.0/Disclaimer of warranties and related issues"

Disclaimer of warranties and related issues

Treatment in 4.0d2: 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.

Treatment in 4.0d1: 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. Please see the Additional terms category below for a proposal allowing the addition of other terms that could cover specialized disclaimer and limitation language.

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.

Considerations

There are several considerations that weigh against a decision to include a warranty or a marking requirement in the licenses. Some of these apply only to warranties, while other considerations apply to both.

Factors weighing against warranties or similar licensor undertakings in the licenses

In addition to those set out in the following section:

• Some good-faith licensors may be unwilling or unable to make any affirmative statements about having cleared third-party rights, often as a matter of institutional policy. These licensors are often actually making best efforts to clear rights appropriately, but are not permitted to make any such declaration that would increase their legal exposure, and would be unable to adopt the licenses.

• Partial solutions already exist where affirmative statements are important to licensees. Many third-party platforms that enable CC licensing already require uploaders to affirmatively agree that they have cleared all necessary rights in their licensed content. (While there are many licensors who are ignorant of this requirement or simply mistaken, it is also likely that these licensors would still be ignorant of or mistaken about the requirement if the text was in the license itself.) Others make separate arrangements when having all rights cleared is particularly important.

• Warranties provides limited benefit or protection to licensees, as they do not necessarily mean that the rights are cleared: if someone applies a license incorrectly, without having cleared the necessary rights, a licensee must still have to stop distributing and potentially face other issues when rightsholders enforce. While warranties may place more liability on the licensor for mismarking, they do not give the licensees security, and a licensee may not be able to get useful recourse from a licensor who cannot pay damages or is difficult to find.

• In some jurisdictions, warranties cannot be disclaimed as fully as the license attempts and implied warranties are read into licenses (particularly when construed as a contract), all by operation of local law. That operates to place responsibility on the licensor notwithstanding; the CC license cannot otherwise affect it.

• Relatedly, the licenses post v1.0 have been designed not to impose affirmative obligations on licensors as part of the bargain to encourage release of materials, and because some licensors simply cannot (as stated above) undertake affirmative obligations when releasing content under public licenses.

• Disclaiming liabilities is the standard for open content licenses (although a few open software licenses include warranties). Reversing course to include warranties breaks with the standard.

• CC prefers the licenses operate as licenses to the greatest extent possible, wherever possible. Having licensors undertake affirmative obligations could work against this interpretation in jurisdictions where the license is construed as a license and not a contract.

Factors weighing in favor of warranties or similar licensor undertakings in the licenses

[Please add]

Against both marking and warranties

• This requirement is not necessary or effective for some potential use cases: for example, a licensor who mistakenly applies a CC license to a joint work without having all of the necessary rights is misapplying the license even under 3.0, and additional language in 4.0 is unlikely to resolve this problem.

• Such requirements are often difficult for licensors who want to comply in good faith, because of the complexity of figuring out all potential rights involved. It is often difficult or impossible for licensors to be sure all rights are cleared, especially where a licensor is depending on fair use, fair dealing, or other copyright exceptions and limitations for particular content included within a licensed work.

• We're not aware of the lack of warranties or marking requirements causing problems in practice for license users--licensors are generally responsible about applying the licenses, but when they are not, it frequently comes from a lack of knowledge about the other rights which may apply, which would not be resolved by additional license text. Licensees who cannot take the risk of uncleared rights hindering their usage of licensed works frequently seek out content from sources they trust, or make separate arrangements with licensors for additional warranties.

Opportunities outside the licenses

There are several things that CC can do outside of the license to increase licensee awareness of third-party rights, and increase licensors' awareness of the desire and ability to provide information about other rights.

• Including options in the Chooser for identifying third-party rights. This could take several different forms, including optional additional fields for other known rights.

• Making information about third-party rights more prominent in the Deed. The Deed currently says nothing about the potential existence of third-party rights, and could potentially be changed to include some. There is also an open proposal to combine the Deed and the Legal Code onto a single page, which would increase the likelihood that license users will see the releveant text.

• Creating 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. There is some guidance already given to licensors by CC on the existence of third-party rights (see Before Licensing#Make_sure_you_have_the_rights). However, it would be possible to create more detailed guides and outreach to licensors in best practice and how-to documents so that licensors will have guidance on how to mark their works in the most useful manner.

• Third-party clearance services. CC could create, partner with, or simply link to a clearance service that would facilitate rights clearing and documenting for uses where additional certainty and security is necessary.