[Foundation-l] promotion of free licenses

[Stephen Bain]

On 11/22/06, David Monniaux <David.Monniaux at free.fr> wrote:
> We have a problem getting people to accept free licenses. One of the
> issues is that, at least in some countries, conditions stating that the
> authors allows any usage of his image for any duration are ruled illegal
> by courts (should the author complain), as abusive clauses. The idea is
> to protect authors from abuse by greedy publishers. I've even heard some
> lawyer from a photographers' society explaining to me that free licenses
> (including Creative Commons etc.) where thus illegal.

Does anyone know of cases where this has actually happened? Also, does
this relate to any particular legislation? I've only ever heard of
this sort of thing in consumer protection or trade practices
legislation.

If there are such situations, I would imagine that they would be
concerning terms in contracts between the author of some kind of
material (such as a book) and their publisher. I don't see how they
could be a problem where a copyright holder themselves publishes the
material under a licence.

Remember also that we consider anyone who submits content to the
projects to be publishing it themselves, and we're just distributing
the material. If someone decides to publish material under a copyleft
licence, that's entirely their decision. The law isn't going to step
in and protect them from themselves.

> Lately, in a private email, Greg Maxwell made a remark that I had made
> in other circumstances, that is
>
> For example, surely the 'share alike' nature of copyleft contracts
> prevents the contracts from being considered unconscionable. Such
> licenses would be acceptable for our purposes.
>
> Indeed, that's one point that we may argue: with "sharealike" licenses,
> the authors do not cede all rights with no compensation or insurance;
> they rather have strong guarantees that uses of their work will not
> stray from their intent of distribution of free content.

Indeed. Unless a certain term is expressly invalidated by legislation,
I can't think that there would be any unconscionability (or whatever
element is required in whatever test is used) in the situation of
copyleft licencing to warrant the invalidation of a term.

Although again I would like to see some actual examples of where this
has happened, if there are any.

-- 
Stephen Bain
stephen.bain at gmail.com