R4R 002 - Warranty Disclaimers & CC licenses
Host: Colette Vogele Guest: Mia Garlick Topics and Questions for Episode 002: In this episode, Colette sits down with Mia Garlick, General Counsel for Creative Commons (CC), to discuss the question of warranties in copyright licenses, and how and why warranties are disclaimed in CC licenses. Warranty language discussed in this eposide Example of typical warranty representations made in a copyright license might look like this: \u201cLicensor represents and warrants that, as of the Effective Date and continuing throughout the Term of this Agreement, the Work does not and will not, infringe the rights of any third party, including without limitation any Intellectual Property Rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties not specifically identified in this Agreement, or result in any tort to any third party. Licensor will be solely responsible for the acquisition of any and all third party clearances, permissions and licenses which are necessary in connection with the exercise of any license granted this Agreement, including, without limitation, with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials, and for the payment of any and all applicable guild fees and for any and all residuals, payments, fees or royalties, if any, payable under any collective bargaining agreement or otherwise.? Another example (not read but mentioned in the episode), may look like this: \u201cLICENSOR represents and warrants that: (i) it has the full power and authority to enter into this Agreement and to grant the rights granted herein, and (ii) the WORK does not contain material that (a) is false or misleading; (b) is defamatory; (c) invades another\u2019s privacy; (d) is obscene, pornographic, or offensive; (e) promotes bigotry, racism, hatred or harm against any individual or group; (f) infringes another\u2019s rights, including any Intellectual Property Rights; or (g) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability.? The warranty disclaimer found in each of the CC licenses reads: \u201cUNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.?