Subject: RE: FOR APPROVAL: OZPLB Licence
From: Russell McOrmond <russell@flora.ca>
Date: Tue, 28 Dec 2004 22:22:37 -0500 (EST)


On Mon, 27 Dec 2004, Michael Sparks wrote:

> This means that if I state on a webpage that the contents may be used
> under a Creative Commons BY-SA-NC-2.0 license, I can be pretty certain
> that the set of rights I want to grant *are* being granted in all the
> countries/legal systems the licenses have been translated into.

  While I am a huge fan of Creative Commons, participate in the iCommons
Canada mailing lists, and license most of my non-software works under
these licenses, I have yet to have someone explain to me why they believe
the above is true.

  A work is not licensed under a "commons deed" or the AT-SA/etc labels,
it is licensed under specific legal code.  If I chose the Canadian license
and you are an Australian, then only if I somehow manage to ensure that a
case involving this work will only be heard only in Canada will the
license be interpreted within the country compatable with the license.

  If you manage to get a case heard in Australia, then we have the same 
problem of licenses being incompatable with the domestic legal code.

  That is just the most simple (and least realistic) case which is that
all the authors of a collective work are from the same legal jurisdiction.  
The Linux kernel as one single project has contributions from citizens in
a large number of countries, and thus has parts that can be seen as under
the jurisdiction of all these countries.  What does the composit license
look like, or are you suggesting that the work is licensed "in the legal
code compatable with the country of the court", a legal concept of license
jurisdiction auto-detection which I don't believe exists anywhere.

  Unless I am missing something, I don't quite see how CC solves the huge
legal jurisdictional problems that exist not only under PCT laws but also
many other laws.  We have seen a number of quite weird tort cases where
the claim is that if someone in a given country can see some material that
it is covered under the tort laws of that country.  I as a Canadian can be
found guilty of violating United States law even though the same activity
is not illegal in Canada, and that I don't intend to set foot in that
country until certain legal issues are fixed.


Any help on this issue greatly appreciated.

Note: This is just a question about the issue which CC is perceived to
solve.  Lets not even begin to discuss legacy code which is already
licensed and the practical problems with attempting to re-license existing
software if this was seen as a solution.

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Have you, your family, your friends (, your enemies) signed the
 Petition to the Canadian Parliament for Users' Rights in Copyright?
 http://digital-copyright.ca/petition/