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