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
>
> -----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