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Creative Commons License Warranty – Follow-up

There has been some follow-up on the Creative Commons license warranty issues raised by me and others recently.
[Note: I would have simply made the following points as a comment to the Creative Commons blog, but making a comment there seems to require acceptance of a CC license for the comment.]
Glenn Otis Brown, who, to the best of my knowledge after reasonable inquiry, is at the Creative Commons or generally able to speak on its behalf, says:
“And again, all the hysteria about getting sent to the poor house is way off base. Read my old posts on the subject again. (1, 2, 3.) There is a “reasonableness” modifier on the warranty. Liability is not unlimited to the ends of the earth. It’s simply not.”
At risk of being characterized as “hysterical” on the subject, I want to point out that the qualifying language of “reasonable inquiry” to which Glenn refers simply limits the instances in which a licensor might be found liable for a breach of the warranty; it has nothing to do with a cap on the amount of damages based on that liability, even if that is what was intended.
Going to the poorhouse still remains a possibility under the current language, although only in cases where there has not been “reasonable inquiry,” whatever they may be found to mean.
Glenn goes on to say:
“Licensors should make a reasonable effort to verify that they’re not licensing someone else’s content, or that if they have, they’re making a fair use. If in doubt, they should tell the world what pieces of content in their licensed work they’re not sure about. If they’re still in doubt, they shouldn’t license their work. That’s it.”
I think that Glenn meant to say “using” rather than “licensing” in the first sentence, but that statement captures my point of concern. Potential licensors should be conspicuously alerted to the warranty provisions and informed that using the CC licenses requires making important choices with significant legal consequences.
That, by the way, is not a bad thing. My real concern has been that the atmosphere around the Creative Commons licenses promotes a “join up with the in-crowd” mindset when in fact people might be better advised to go slow – especially authors and content creators, given that from Glenn’s comments, it is definitely not the intent of the CC licenses to maximize protection for authors.
Karl-Friederich Lenz has done a nice job of commenting on these issues here and here and here.
The last comment by Professor Lenz is in response to the point that the CC Licenses themselves explicitly contained an as-is clause and a disclaimer of all warranties, which was somewhat ironic. Glenn’s comment on the CC’s change to that language remains unconvincing to me, but I think even the changed language brings home the point that authors are very reluctant to give warranties of any kind when they are licensing content without any compensation (and even when they are).
The bottom line for me is that the waranties are still being discussed and, as a result, I believe the purposes of the CC licenses will be better clarified so that we can make a good decision about when and if they may be appropriate for us. For now, I personally will not use the licenses, laudable as their intent may be.

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