I don't want to sound defensive, but we had this wording out there for public comment and we have involved a large number of people from many countries. While it is "at best a legal opinion" it is more than the legal opinion of a single lawyer. It is the consensus of a community of lawyers, judges and legal experts. It is true that the courts will determine the interpretation, but I would just caution making it sound like our opinion is the opinion of some single person with less than an "any law student" worth of experience.
Having said that, we are thankful for the feedback and we are working to clarify our wording based on your feedback. Also, while IANAL, many of the points you people have made make a lot of sense. I hope we can find a better way to try to get people from this community involved during the discussion phase of the license drafting. ;-)
One more thing to remember is that the current wording is the wording on the generic license. We really hope that most people won't use the generic license, but will use their local licenses. We are working hard to make the licenses more precise in the local versions and I believe that these will be less ambiguous about the moral rights issue. Maybe those of you who disagree with the generic license can take a look at some of these local ones and see if they meet your criteria.
- Joi
On Jul 21, 2007, at 11:51 JST, Stephen Bain wrote:
On 7/20/07, Erik Moeller erik@wikimedia.org wrote:
CC representatives have already responded here on this list with a clear legal position that the moral rights clause does not add any new restrictions, and indicated that they would be willing to improve the wording in future licenses. What more can they do?
Their statements on the subject are certainly welcome, but they are not courts, and their "clear legal position" is at best a legal opinion. That they wrote the licences is not important, it is the courts who interpret and apply the words used.
The problem with the "except" clause is that the jurisdictions in which moral rights protection is weak do not really "permit" uses incompatible with moral rights, they just do not make unlawful those uses. Their laws are silent on the matter. Any law student can tell you that "lawful" is not the same as "not unlawful".
we (or a court, or anyone applying the licence)
-- Stephen Bain stephen.bain@gmail.com
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