From: David Hansen <[log in to unmask]>
Date: Fri, 22 Nov 2013 10:03:23 -0500

Sandy -- I don't think that reading "actual malice" into the CC license is
correct. The license doesn't say anything about intent or the licensee's
state of mind, and ordinarily one would not read a that sort of thing into a
contract (or a statute for that matter, unless it was a criminal statute, in
which case a state of mind is usually required). I think the license means
what it says--if you make a translation which harms the authors' honor or
reputation, that is beyond the scope of the license. I can dig up a citation
on contract interpretation for this if you are interested, but I don't think
it is a controversial a point.

Maybe you are reading the CC license clause with the language from VARA in
mind? But I would argue that even VARA does not have a 'state of mind'
requirement, such as actual malice. VARA allows the author of a covered work
of visual art to "to prevent any intentional distortion, mutilation, or
other modification of that work which would be prejudicial to his or her
honor or reputation." The "intentional" requirement in the Act would
ordinarily be read to apply only to the performance of the action
(distortion, mutilation, or modification) but not to the effect of those
actions. I think the statutory construction rule that leads to that result
is generally referred to as the "last antecedent" rule or the
"nearest-reasonable-referent" cannon, if anyone would like to check that.
However, FWIW, I haven't read any VARA cases that squarely address this
issue. I would actually be happy to be wrong about this.

In response to Aurelia -- I'm not sure whether it was intentional or not by
CC drafters, but I read the CC clause as creating a restriction on use that
is parallel to most countries' moral rights, but not necessarily dependent
on the existence of a moral right in the country in which the license is
used. I'm not sure why a US court would just throw up its hands and say "
prejudicial to the Original Author's honor or reputation" has no meaning in
the US just because we don't have a statute on point. It would be easier to
interpret if we did have a moral rights law on the books, but the court
would still have to interpret the clause and decide if the translation has
the effect of being prejudicial to the Author's honor or reputation. Those
CC license words still have independent meaning.

Disclaimer: All that said--I'm not giving legal advice. Get your own lawyer
if you need help.

Dave

David R. Hansen
Digital Library Fellow
UC Berkeley School of Law
[log in to unmask]
http://law.berkeley.edu/librarycopyright.htm

-----Original Message-----

From: "Aurelia J. Schultz" <[log in to unmask]>
Date: Thu, 21 Nov 2013 13:42:51 -0600

Hi Sandy,

I'll give an opinion here, though as is typical with attorney opinions that
are not legal advice it may not be as helpful as you'd hoped.

That particular provision of CC-BY that Klaus cited under (i), Section 4(c),
is in the licenses in order to address moral rights. In some countries, any
adaptation can be considered to violate moral rights, hence the specific
listing of Japan in the license.  But in other countries, like the United
States, there are no moral rights.  So I would suggest that whether or not a
bad translation of a CC-BY work violates section 4(c) of the license depends
on whether or not the translation is "prejudicial to the Original Author's
honor or reputation" under the laws of the country where the license is
being enforced.

In the US, a bad translation should not violate the license.  In other
countries with strong traditions of protecting authors' honor, maybe it
would.

Aurelia

Aurelia J. Schultz, Attorney at Law
California | Wisconsin
Skype: aurelia.schultz
Afro-IP <http://afro-ip.blogspot.com>
Book an appointment: https://my.vcita.com/6e04f97d/scheduler


> From: Sandy Thatcher <[log in to unmask]>
> Date: Mon, 18 Nov 2013 19:38:02 -0600
>
> I'm well aware of the proviso of the CC-BY license Klaus cites under
> (i). But I interpret that to mean, as it would in libel law, "actual
> malice," viz., intentional distortion, mutilation, modification, etc.
> I do not believe it would invalidate the license if simply a poor
> translation is prepared with good intentions. Is there any lawyer on
> this list who would care to express an opinion here?
>
> Sandy Thatcher