On 12/28/2009 1:53 PM, Bob Wyman wrote:
> On Mon, Dec 28, 2009 at 4:28 PM, Jay Rossiter <[email protected]
> <mailto:[email protected]>> wrote:
> > Licenses are binding legal documents, they are
> > not legislatively provided copyright protections.
>
> What is and is not a binding legal document and what is the proper
> form or scope of a legally binding document is defined by
> legislatures. Neither standards groups nor individuals can define what
> is legally binding -- they aren't legislatures.
Providing written notice of restrictions is legally binding. See
"No Trespassing".
> Imagine if this wasn't the case... Then, I could insert "license
> restrictions" in any content I created and do it in some totally
> random way that you'd never heard of. Then, on discovering that you
> hadn't done what I said, I could sue you and claim that you should
> have studied the bits before you did anything with them. You might
> argue that I hadn't tagged my "license" in some "standard" way, but I
> would just argue that I have as much standing as any Standards group
> as far as the law is concerned. The only way that I can force you to
> take notice of my particular way of encoding license terms is if I use
> a format defined by a legislature.
The legislature limits what can and can't be restricted. Courts
decide if violations fall within the allowed contexts. If you insert a
restriction into your content in a way that is intentionally hard to
find, the courts will find it invalid. That has NOTHING to do with
whether it would have been valid had you made it visible. Any attempts
to restrict something after it had already been implied would also be
found invalid (attempting to restrict viewing the content, when viewing
the content is required to view the restriction, e.g.).
> If anyone could randomly declare limitations on the use of their
> content then we'd have to simply shut down the Internet since you'd
> never know what rights you had until you'd already touched some data
> and potentially had already violated the terms! The Internet would be
> too dangerous to use if the law allowed people to create such licenses.
See above.
> This limitation of the scope of unilateral declarations of license
> terms is, of course, explicitly noticed in all the Creative Commons
> licenses -- that are normally what people are concerned with. All of
> these licenses contain explicit statements that they do not restrict
> rights otherwise granted by copyright. For instance, they all say:
> "ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE *OR
> COPYRIGHT LAW* IS PROHIBITED." That means that the Creative Commons
> license prohibits nothing that is otherwise permitted under copyright
> law. The CC licenses also include the following: "If the standard
> suite of rights granted under applicable copyright law includes
> additional rights not granted under this License, such additional
> rights are deemed to be included in the License; this License is not
> intended to restrict the license of any rights under applicable law."
> So, at least twice in each Creative Commons license you will find a
> statement that CC licenses do not restrict any rights otherwise
> granted under copyright...
CC is only once license. The fact that it doesn't prohibit anything
has no bearing on other licenses. They can, and do, prohibit many
things. Copyright law does not prohibit further restrictions. It is a
specific set of allowances and protections.
>
> Legislatures define the form and scope of legally binding licenses.
> You can write whatever you want, but it is only legally binding if
> some legislature said it would be.
