Showing posts with label creative commons. Show all posts
Showing posts with label creative commons. Show all posts

Click-wrap agreement unenforceable in Secondlife

Thursday, July 19, 2007

Last May I had an interesting discussions with Priyadi and others on the enforceability of Creative Commons license in Indonesia. In that previous post, I mentioned the example of Comb v PayPal (US District Court of San Jose), in which the Court find the agreement unenforceable.

Recently, in the case of Marc Bragg v Linden, the Court also finds Secondlife's wraps agreement unenforceable:
Linden presents the TOS on a take-it-or-leave-it basis. A potential participant can either click “assent” to the TOS, and then gain entrance to Second Life’s virtual world, or refuse assent and be denied access. Linden also clearly has superior bargaining strength over Bragg. Although Bragg is an experienced attorney, who believes he is expert enough to comment on numerous industry standards and the ‘rights’ or participants in virtual worlds, … he was never presented with an opportunity to use his experience and lawyering skills to negotiate terms different from the TOS that Linden offered.
Creative Commons license is of course, different from these wraps. Nevertheless the same question remain, can it be declared unconscionable?

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Is Creative Commons license applicable in Indonesia?

Wednesday, May 16, 2007

I dare not to say 100 per cent "yes". If I am sitting in the judge chamber and have to decide on this matter, I think I would say "yes" and direct judicial interpretation in that favor. But unfortunatelly I am not a judge.

What underlies my doubt? Well, here's what the law says:

Article 45
(1) The Copyright Holder shall have the right to give a license to another party based on a letter of licensing agreement to carry out the acts as referred to in Article 2.
(2) Unless otherwise agreed, the scope of licence as referred to in paragraph (1) shall cover all acts as referred to in Article 2 for a period of the licensing agreement and is exercisable within the entire territory of the Republic of Indonesia.
(3) Unless otherwise agreed, the implementation of acts as referred to in Article (1) and (2) shall be accompanied by the obligation to pay royalty to the Copyright Holder by the licensee.
(4) The amount of royalty, which has to be paid by the licensee to the Copyright Holder shall be based on the agreement between the two parties by using the agreement of professional organization as a guide.

Article 46
Unless otherwise agreed, the Copyright Holder shall reserve the right to exercise or to give further licences to other third parties to carry out acts as referred to in Article 2.

Article 47
(1) A licensing agreement shall not contain any clauses, which may cause detrimental effect on the economy of Indonesia or to contain any clauses, which cause unfair business competition as provided for in the prevailing laws and regulations.
(2) In order to have legal consequences against a third party, a licensing agreement shall be recorded at the Directorate General.
(3) The Directorate General shall refuse any request for the recording of a licensing agreement, which contains clauses as referred to in paragraph (1).
(4) Further provisions regarding the recording of licensing agreements shall be regulated in Presidential Decree.

Letter of licensing agreement? Well, that is my rough translation of "Surat Perjanjian Lisensi".

Sure, agreements could be conducted verbally, as long as it complies with Article 1320 of the Civil Code. But is it enough to conduct a licensing agreement on copyright verbally?

Lets say that there is a guy named Tom who wants to publish his diary. The publisher has a telephone conversation in which he agreed to publish Tom's diary for a percentage of royalty. Is that sufficent? That is an agreement allright, it conforms Art. 1320. But is that a copyright licensing agreement? If Tom is a bad kid and he hires a lawyer, the lawyer will say: "My client has never conducted any agreement with you. The Copyright Law says that the Copyright Holder shall have the right to give a license to another party based on a letter of licensing agreement. If you think you had agreement with him, show me the contract".

Anyway, what it says there is that, it has to be done in written.

Now, will putting these icons on your blog constitute a "letter of licensing agreement"? You can say "yes", it is in fact a "license", there are terms and conditions, there are limitations. Is it "written"? Well, it is non verbal, so I guess, it is in a way "written".

But where are the party's signatures? If you said that it is a written agreement, there has to be a signature. Your answer: hey, this is 21st century dude, all we have to do is to click-through. You are right, there's shrink-wrap, click-wrap, browse-wrap, web-wrap, and other wrap wraps you name it.

That "I agree" button you see is a substitute of the signature. But in creative commons license, how can a signature be substituted so that the legal formalities is fulfilled? By citing it? By quoting it or putting it on your blog? Maybe. We can always theoritize that the expression of agreement is conducted when the licensee performs any action that is deemed to be within the realm of the CC agreement.

The problem of "expression of agreement" does not stop on CC alone, but to other non-conventional agreements in the internet and especially, a public license agreement.

I shall remind you that even in the US, the "wraps" agreement are subject to legal controversies. The validity of a browse-wrap agreement was denied by the San Jose Court on the case Comb v. PayPal, Inc. The Court held:

Having considered the terms of the User Agreement generally and the arbitration clause in particular, as well as the totality of the circumstances, the Court concludes that the User Agreement and arbitration clause are substantively unconscionable under California law and that arbitration cannot be compelled herein.

I'd love to hear your comment.