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

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Factors weighing against marking and warranty undertakings by licensors

• These requirements would not relieve the underlying problem in some if not many cases given the complex web of copyright and other laws that may apply. Many licensors simply are not aware of all possible rights that may exist in a work -- by way of limited example, a licensor could apply a CC license to a work she authored but the applicable law considers it a "joint work" requiring agreement of all authors to license; or a licensor shares a photograph with blurry (but upon close examination, identifiable) persons in the background under a CC license that permits commercial reuse.

• Warranty and marking requirements are simply not an option (financially) for licensors wanting to share and comply in good faith. Transaction costs associated with clearing and documenting all possible rights is a nearly impossible task (particularly when the work is released to the public for free reuse) for well funded organizations let alone an individual licensor wanting to share. The problem is particularly acute when the work is a musical work or performance, or a film production.

• The existing treatment seems to work well in practice. The current (and 4.0) attribution and marking requirements 4.0 make contact with licensors easy for those seeking formal assurances or warranties.

Factors weighing in favor of marking and warranty undertakings by licensors

Opportunities outside the licenses

There are several things that CC could undertake outside of the licenses to encourage licensors to clear rights and document known third party rights or other limits on the licenses that could actually improve the underlying situation in a way that no shift of responsibility in the licenses could.

• Facilitate offers of warranties by licensors who can and want to provide them, and possibly highlight those who do so through the Deed. The current draft of 4.0 anticipates such offers.

• Include options in the Chooser for identification of known or potential third-party rights, or other limitations of the license. This could take several different forms, including optional additional fields.

• Make information about the possible existence of other rights more prominent in the Deed. The Deed currently is silent in this regard. There is also an open proposal to combine the Deed or replicate the Deed on the same page as the Legal Code, facilitating still more easy access to the Legal Code where details of limitations are made abundantly clear.

• 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). However, it would be possible to create 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 so that licensors will have guidance on how to identify and clear more rights, and mark their works in a more informative manner for licensees.