[cc-licenses] ShareAlike and version compatibility

Mia Garlick mia at creativecommons.org
Thu Apr 13 17:49:13 EDT 2006


just to answer the question as to what CC thinks - whether it's  
licenses are only a license, not a contract; in my view, the CC  
licenses are contracts.

rgds, mia
cc gc

On Apr 13, 2006, at 1:11 PM, drew Roberts wrote:

> On Thursday 13 April 2006 09:08 am, Peter Brink wrote:
>> drew Roberts skrev:
>>> Let's assume for a second that it would be a contract in Europe, are
>>> consideration and "a meeting of the minds" necessary conditions for
>>> contracts there? If so, what would be the consideration?
>>
>> The concept of "consideration" is a common law legal concept. In  
>> fact,
>> when we enter the field of legal theory you will find that the
>> differences between civil law jurisdictions and common law  
>> jurisdictions
>> become more pronounced. One of the "features" of the civil law  
>> tradition
>> is its heavy reliance on legal theory (as compared to common law  
>> that is
>> formed by case law). Civil law is, in fact, pretty much equal to  
>> legal
>> science. Preciseness and predictability is its prime objectives.
>>
>> Needless to say there are copious amounts of works devoted to the  
>> law of
>> contracts, so the following is a very brief overview. It is also  
>> based
>> on Swedish law, which differs from continental law in this particular
>> field. Sweden does not have a large civil code book, as does Germany,
>> France, and Italy etc. A large part of Swedish contract law is still
>> non-codified, the gaps being filled by the use of analogies from  
>> written
>> law.
>>
>> That being said the basis of contract law in Europe (as in most  
>> parts of
>> the world) is the offer of and the acceptance of obligations. Party A
>> offers something to B under certain conditions, B accepts and in  
>> doing
>> so becomes obligated to perform what A requested. The classic example
>> being a purchase; A offers to sell something to B for a given  
>> amount of
>> money, B accepts and becomes obligated to pay A the sum that was  
>> agreed
>> upon. A is in turn obligated to perform his part, the delivery of the
>> sold goods. So a contract is an exchange of obligations.
>>
>> However not all exchanges of obligations are contracts. There are  
>> some
>> basic requirements. The exchange must be voluntarily and the offer  
>> and
>> the acceptance must be in accord. To put it in another way: both  
>> parties
>> must intend to be obligated, and the expressions of this intent  
>> must be
>> in accord.
>>
>> If only one party intends to bound by an obligation and unilaterally
>> expresses this intention we don’t have a contract properly. What  
>> we have
>> is a gift. Gifts are unilateral legal acts which only binds the  
>> benefactor.
>>
>> If the expressions of intent are in discord we normally still have a
>> valid contract but we might have problems when we try to determine  
>> what
>> has been agreed upon.
>>
>> It's perfectly possible to have contract, written by one of the  
>> parties,
>> where the terms of the contract can only be accepted or refused by  
>> the
>> other party. Such contracts are called adhesion contracts. In this  
>> case
>> the expression of intent is usually the contract itself.
>>
>> So to answer your question. No – a consideration is not necessary. A
>> "meeting of minds" is however.
>>
>>> And how could a meeting of the
>>> minds be imputed with respect to a person from a jurisdiction  
>>> with the
>>> concept of a license who thought they were issueing a license and  
>>> not
>>> entering into a contract?
>>
>> That would depend upon international private law. More precisely -  
>> the
>> rules regarding the choice of laws and these rules are not easy to
>> understand and are thus largely the domain of legal professionals. In
>> Europe we have reasonably robust rules that would make it possible to
>> predict what laws would apply to a contract such as CCPL. If one  
>> of the
>> parties lives in the US the matter becomes more uncertain...
>>
>>> Is this whole jurisdictional adaptation and the cross  
>>> jurisdiction clause
>>> really a big legal minefield? (I hope I am being clear as to my  
>>> concern
>>> here.)
>>
>> Well, that depends on where you live and where the other party  
>> lives...
>> It also depends on how you intend to use a CCPL:ed work. If you only
>> want to make large amounts of copies of a work or redistribute the  
>> work
>> then there should be no problems. If, however, there is a dispute  
>> over
>> the meaning of the term "commercial" then it might be a real problem.
>
> Thanks for your answers. Actually, in that last question, I was  
> thinking more
> from the point of view of a person creating a work and licensing it  
> under
> say, CC BY-SA where the person lives in the US or somewhere else the a
> license can exist (I still have not had an answer as to whether CC  
> considers
> the licenses to be licenses or contracts and I don't remember if  
> the license
> itself says so but I do remember reading that the GPL guys think of  
> the GPL
> as a license and not a contract. Whew!) and thus their intent is  
> not to enter
> into a contract under any conditions WRT the licensing of their  
> work. So,
> could such a person find themselves bound to a contract they never
> contemplated entering as a result of how these optional jurisdictional
> clauses work? (Again, I hope it is clear what I am asking.)
>>
>> /Peter Brink
>
> all the best,
>
> drew
> -- 
> http://www.ourmedia.org/node/145261
> Record a song and you might win $1,000.00
> http://www.ourmedia.org/user/17145
>
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