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