Re: MPS and PLoS Sign Agreement

[Kevin L Smith <kevin.l.smith@duke.edu>]

There is some controversy over the validity of a click-through 
license, but courts have been upholding them lately.  Look at the 
case involving the "Turnitin" software in Maryland recently for 
an example.  Basically, any act taken after the license terms are 
presented that will manifest assent seems to be enough to form a 
contract, even, as in the Turnitin case, where the licensees 
tried hard to indicate that they wanted to modify some of the 
terms.

By definition, a license is exactly a voluntary waiver of rights 
-- "a revocable permission to commit some act that would 
otherwise be unlawful," to take Black's Law Dictionary's wording. 
A license does not have to be a contract, although many are.

There was a case decided in the past month that really clarifies 
the issues being discussed here.  In regard to a open source 
software license which operated in the same way as a CC license, 
a court found that using the software did form a contract such 
that there terms of the license were conditions on the use.  If 
those terms were breached, the licensor had not only the full 
range of contract remedies available to them, but were entitled 
to sue for copyright infringement.

It is quite true that a mere attribution license would not be 
necessary in moral rights countries.  But in the United States it 
is the only way for academic authors to ensure that they get that 
which they value most -- the reputational benefits that come with 
publication.  That is why I tell our authors that a CC license 
serves their needs better than traditional US copyright law can.

I do not have the citations to those two cases handy, and have to 
go to a meeting.  But I am happy to send them to the list later 
if there is a great public outcry.

Kevin L. Smith, J.D.
Scholarly Communications Officer
Perkins Library, Duke University
Durham, NC  27708
kevin.l.smith@duke.edu
http://library.duke.edu/blogs/scholcomm/
____________________________________________________

Sandy Thatcher <sgt3@psu.edu>
Sent by: owner-liblicense-l@lists.yale.edu
09/01/2008 06:30 PM
liblicense-l@lists.yale.edu
Subject Re: MPS and PLoS Sign Agreement

One could simply post one's work online with a notice such as the 
following: "This work is made available to the public by the 
author who asserts no rights under U.S. copyright law and permits 
all uses of it subject only to the condition that the author's 
name accompany the text every time it is reproduced."

As noted, under U.S. law, attribution is not guaranteed as a 
right. So if attribution is desired, this needs to be stated as a 
condition separate from the waiver of copyright. Under European 
law, "moral rights" including attribution are inalienable, so the 
condition above would be superfluous.

I wouldn't call this a "license" at all, but simply a voluntary 
waiver of rights by the author. To me, "license" suggests a 
contract between the author and one or more users.

Perhaps I don't understand exactly how the CC licenses work, but 
do users all have to "sign" these licenses in some manner? Or do 
they operate more in the manner of a "click-on" agreement, about 
which I understand there is some controversy as to their legal 
validity?

Sandy Thatcher
Penn State University Press

>I see three possible advantages to authors in using the
>Attribution license adopted by PLOS:
>
>1.  As Sandy notes, it ensures that authors receive credit for
>their work in a nation that does not recognize moral rights.
>This is the primary advantage over dedication to the public
>domain (which itself would require a different CC license). 2.
>It simplifies for authors the process of granting rights.  Sandy
>correctly notes that "One could simply grant to users free use of
>the article for any purpose with no need to protect attribution,
>since that right is inalienable in 'moral rights' systems."  But
>how would one grant users "free use of the article"?  The CC
>license is an easy, standard way of doing so. 3.  Most of all, it
>makes it explicit that one's work is intended to be part of the
>"republic of scholars," where advances in scientific knowledge
>are freely shared for the betterment of society.
>
>Sandy, are you suggesting that the public domain dedication
>license should be used instead?  Why would the public domain be
>preferable to an attribution license?
>
>Peter
>
>Peter B. Hirtle
>CUL Intellectual Property Officer
>Scholarly Communications and Special Collections
>Cornell University Library
>Ithaca, NY  14853-5301
>peter.hirtle@cornell.edu
>http://www.copyright.cornell.edu