My beautiful argument yesterday that Creative Commons can't very well insist on people giving warranties in CC licenses if they disclaim them for themselves might be falling apart already. Maybe that was too good to be true.
So here is another witness for the theory that Creative Commons doesn't really insist on the warranties even now. The MIT Open Courseware License. That license is well known to Creative Commons, as is easily verified reading Glenn Otis Brown's article here.
Article 4 of the MIT license:
"4. Liability Disclaimer
Care has been taken by MIT OCW, faculty authors and content developers to assure accuracy and completeness of content in MIT OCW consistent with high academic standards. However, neither MIT nor original authors make any warranty, express or implied, as to the correctness, completeness, or quality of OCW materials. Materials or their suitability for a particular purpose. THE MIT OCW MATERIALS ARE OFFERED AS IS. MIT AND THE COPYRIGHT OWNERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. MIT EXTENDS NO WARANTIES OF ANY KIND AS TO THE MIT OCW MATERIALS' CONFORMITY WITH ANY OTHER MATERIALS. Furthermore, and not limiting the foregoing, MIT makes no warranty or representation that the use of the materials will not infringe any patents, copyright or other intellectual property rights of MIT or of a third party.
IN NO EVENT SHALL MIT, ITS TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGES OR INJURY TO PROPERTY, PERSON OR LOST PROFITS, REGARDLESS OF WHETHER MIT SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING."
This is exactly what I think is fair in a license that is given free of charge. However, it is substantially different from the Creative Commons default license.
So why can MIT call this a Creative Commons license? And is everybody else also free to start editing the Creative Commons license texts to suit their personal prefences?
The answer needs to start again at the Creative Commons "policies" page.
There all content on the website is licensed under a simple attribution CC license. That would mean that everybody would be free to edit CC license texts like MIT has done, as long as they continue to give credit to Creative Commons, as MIT does.
If that were true, the debate would be a very different one. Everyone who doesn't like the idea of giving warranties for licenses that are free of charge can just edit them out, like MIT did.
However, there is some uncertainty left. The license is only valid where not noted otherwise.
The next two sentences on the "policies" page say:
"We do not assert a copyright in the text of our licenses. Modified versions of our licenses, however, should not be labeled as 'Creative Commons.'"
This might reasonably be understood as "noting otherwise".
The first sentence might mean that the text of the licenses is dedicated to the public domain, though there is some doubt from the fact that Creative Commons has a formal procedure in place for dedicating to the public domain and nothing indicates that procedure has been followed for the license texts.
If so, MIT and everyone else can edit the texts as well. However, in that case people are not required to give credit to Creative Commons.
And the next sentence even requires people from refraining to do so. It is not exactly clear if Creative Commons would use trademark law to enforce their wish that people "should not" label modified versions as Creative Commons licenses. Maybe MIT is not violating the Creative Commons trademark right now.
Then, maybe they are.
So it seems to be clear under any reading of the policy page that people can go ahead and write their own different version of the license texts, if they don't like the treatment of the warranty issue, or anything else in the default. For example, if someone wanted to use CC licenses with DRM, they could just edit out the DRM part.
But another question that might benefit from some clarification is: Will Creative Commons tolerate calling the resulting changed license text a "Creative Commons" license, as they apparently are now in the MIT case?
Posted by Karl-Friedrich Lenz at May 20, 2003 09:01 PM