contract law: January 2008 Archives

In my last posting, I talked about the problem of people purporting to license material under a Creative Commons licence, where they had no right to do so.  One such scenario is:

• A finds a copyright picture of a cat on the Internet;
• A inserts a humorous caption, and publishes the resulting captioned picture on flickr under a Creative Commons licence which permits commercial re-use;
• B finds the picture on flickr, and starts selling t-shirts with the picture on them, not realising that they are infringing copyright;
• C, the person who owns the copyright in the original picture, finds out that B is infringing their copyright and sues B.  (Yes, they could also sue A, but lets assume B has deeper pockets and is a more attractive target)
  

If you're B, what do you do?  You're reusing the captioned picture in good faith and in compliance with the terms of the CC licence, it's not your fault that the licence is invalid because A didn't know or didn't care that they couldn't validly license the picture.  Now you've got a very pissed off copyright owner suing you and trying to take your house, and it's A's fault.

So what do you do?  You sue A.  Except that the terms of the CC licence try very hard to prevent you from doing that.  See for example cl 5-6 of the CC Attribution 3.0 unported licence:

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE 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.

This is serious stuff.  The version 1.0 licences expressly warranted 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 hereunder and to permit the lawful exercise of the rights granted hereunder ...'  The post-1.0 licences basically say 'I give you the right to reuse this stuff, but I refuse to say whether I'm the copyright holder, and if I'm not, you can't sue me.'

The disclaimer and limitation of liability clauses aren't air-tight, or at least not in all cases.  If there was fraud involved, they wouldn't be effective.  There may be applicable warranties which are implied by statute which the licensor can't contract out of.  A court might hold that these clauses aren't sufficient to contract out of liability in negligence.

The paper which I referred to in my previous posting explores these issues in more detail.  The deletion of warranties after the 1.0 licences has a lot of history (involving much dummy-spitting and beating of chests), and I don't defend everything that the 1.0 licences warranted -- they went too far in some areas.  But I think that the post-1.0 licences have gone too far in the other direction -- by disclaiming warranties as to the validity of the licence, and attempting to contract out of all liability, IMHO they disclaim too much to be useful, or at least, they disclaim too much to fulfil their stated goals.