[cc-licenses] ShareAlike and version compatibility
Mia Garlick
mia at creativecommons.org
Fri Apr 14 00:18:53 EDT 2006
the promise/ agreement to retain copyright notices, warranty
disclaimers, license notification, attribution as well as compliance
with the other terms of the license in reliance on & exchange for the
licensor's promise to make the grant of rights under the terms of the
license.
On Apr 13, 2006, at 2:58 PM, drew Roberts wrote:
> On Thursday 13 April 2006 05:49 pm, Mia Garlick wrote:
>> 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.
>
> OK, so in the US, what does CC say the consideration is on the part
> of the
> person making use of the license?
>>
>> rgds, mia
>> cc gc
>
> all the best,
>
> drew
>>
>> 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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>
> --
> 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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