From: David Hansen <[log in to unmask]>
Date: Tue, 26 Nov 2013 12:13:52 -0500

Good point. I don't think a judge would be comfortable, but then again
judges have to make hard decisions like that all the time. Maybe a jury
would be better? [sarcasm]

On the CC-BY license-- I read it differently. CC-BY (unported) creates a
moral rights restriction even where such a restriction might not exist under
the applicable national law. The author is not only NOT giving up rights to
control the quality of translation, but I would argue that the license is
explicitly creating that right to control derivative work quality even where
that right might not otherwise exist.

The relevant text is in CC-BY 3.0 section 4(c). Important to note that the
unported license has that moral rights section 4(c), but the US version of
CC-BY does not have it. Compare
http://creativecommons.org/licenses/by/3.0/legalcode and
http://creativecommons.org/licenses/by/3.0/us/legalcode

I guess that is a good reason for US authors who do not want that
restriction in place to use the US version of the CC-BY license.

Dave

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

From: Sandy Thatcher <[log in to unmask]>
Date: Mon, 25 Nov 2013 15:59:30 -0600

And you think a court is going to be able to make a judgment about whether a
translation is poor or not? That's like asking a court about whether a
painting is aesthetically pleasing or not. What standard is going to be
used? And does a poor translation necessarily harm an author's reputation,
especially if it is known that the author had no hand in approving the
translation? On the other hand, the CC-BY license alone removes any
possibility for the author to control the quality of the translation. Is
that a sacrifice all scholars are willing to make for the sake of wider
dissemination, even in flawed translations? Klaus seems to think so. I do
not.

Sandy Thatcher


At 2:54 PM -0500 11/24/13, LIBLICENSE wrote:
>
> 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