[cc-licenses] Am I a contract or not - that is the question...?
peter.brink at brinkdata.se
Mon Oct 9 10:13:47 EDT 2006
The following is a somewhat theoretic piece of text and is a clearly
civil law oriented alternative way of looking at the license. Food for
thought for some, needs to be taken into careful consideration by others
(like the Swedish CC-team) – IMHO of course.
Andres Guadamuz skrev:
> In my very personal view, you have a contract in copyright licences in
> most civil law systems because the offer takes place when the work is
> made available to the public under a licence, while the acceptance
> takes place when the licensee uses the work under those terms.
> However, in some systems the making available to the public would be
> an invitation to treat, and NOT an offer, which could mean that you
> may not have a contract until the licensor has made an unequivocal
> acceptance. The intention to enter into a legal relationship is clear
> on the fact that the work has been made available under a licence.
There's a problem with the offer here though (that I just realized
myself). There are in most civil law jurisdictions some retirements on
an offer, it must be:
1) addressed to one or more specific persons and
2) be sufficiently definite and
3) indicate the intention of the offeror to be bound in case of acceptance.
(cf. CISG art. 14(a))
Our problem is that the license is addressed to an indefinite number of
people. If we have another look at CISG, in 14(2) it's stated that "[a]
proposal other than one addressed to one or more specific persons is to
be considered merely as an invitation to make offers, unless the
contrary is clearly indicated by the person making the proposal."
This description very nicely fits the CC-license. There's an offer, not
very explicit but still and the offer is obviously not targeted at a
specific person or a specific set of persons. Needless to say the
interpretation of whether or not the CC-licence's offer is really an
offer will vary from jurisdiction to jurisdiction, but there is really
no clear indication of that the license is an offer (in the first place)
and even less that it's not an invitation to make an offer. And in
Sweden at least, that means that the offer is not binding to the
licensor, i.e. he can revoke it. Since Sweden uses the promissory
principle and not the contract principle (when forming contracts) an
offer is normally bound by his offer until it's accepted or rejected and
that's why it matters to us if the CC-license contains an offer or not.
Since the promissory principle is quite widely used this might be
problem elsewhere as well.
Now there's is always more than one way of skinning a cat. One way of
handling the CC-license is to treat it as a loan (not as gifts [as I
have confusingly said in previous posts] though - a gift transfers the
ownership of a piece of property). A loan isn't really a contract. Loans
are sometimes called contracts but that's is a bit of a misnomer, a
contract consists of two unilateral legal acts that (in theory)
manifests one will, a loan however is a unilateral legal act manifesting
*one* persons will.
In Sweden, as a general rule, a benefactor isn't bound by his promise
until he actually transfers the property. If he has presented the
beneficiary with a written deed (for example a promissory note) or made
the promise in public he is, however, bound by his promise.
There is no real need of an formal acceptance of a gift or loan, the
beneficiary's actions is often enough. If he makes use of the beneficial
act he has accepted it. When a beneficial transaction has been carried
out it cannot easily be revoked, unless the benefactor has stipulated
some terms for the beneficial act. Such terms may very well resemble
ordinary contract clauses - the springing point is if the terms creates
such a burden on the beneficiary that the gift or loan looses its
beneficial character, if that is the case then the beneficial act morphs
into onerous contract.
It's fairly obvious (IMO) that releasing a work under a CC-license is a
beneficial act. The copyright holder (the benefactor) grants anyone in
the world the right to use his work in ways they would not have been
able to do without his permission and there is no demand of any monetary
compensation. There are however terms associated with the loan. The
question is then if the terms associated with the CC-licenses creates
such burdens on the licensee that the license stops being a beneficial
legal act and becomes a onerous contract instead.
The terms are:
a) You must include a copy of, or the Uniform Resource Identifier for,
this License with every copy or phonorecord of the Work You distribute,
publicly display, publicly perform, or publicly digitally perform.
b) You may not offer or impose any terms on the Work (or any Derivative
Works) that alter or restrict the terms of this License or the
recipients' exercise of the rights granted hereunder.
c) You may not sublicense the Work.
d) You must keep intact all notices that refer to this License and to
the disclaimer of warranties.
e) You may not distribute, publicly display, publicly perform, or
publicly digitally perform the Work (or any Derivative Works) with any
technological measures that control access or use of the Work in a
manner inconsistent with the terms of this License Agreement.
f) You must keep intact all copyright notices for the Work and provide,
reasonable to the medium or means You are utilizing: ...
The last term (f) is already required by law (in Sweden at least), so
that cannot be said to be a burden imposed by the benefactor. A can
hardly be called a burden, neither so D. It cannot be considered an
onerous task to maintain a few pieces of information about the work. B
is also hardly a burden, the benefactor request that you do not alter
the effects of his beneficial act, which is very reasonable. That the
beneficiary may not issue sublicenses follows from the fact that there
has been no transfer of ownership, the licensee only borrows some parts
of the copyright holders rights, so C is also hardly a burden. That the
beneficiary is forbidden to impose any technological measures that
might alter the benefactors intentions with his beneficial act does not
create an onerous burden on the beneficiary. It follows from an unspoken
rule that the beneficiary should respect the wishes of the benefactor.
It's quite possible IMO to take the position that the license does not
impose any obligations (in a contractual sense) on the licensee. The
CC-license can therefore be seen as neither an license nor an contract
but a loan. It's not a license because such an legal instrument does not
exist in civil law jurisdictions. It's not strictly a contract because
it's a beneficial legal act and not an onerous one. It's a loan because
it does not transfer any ownership of property.
This line of reasoning has two interesting results. 1) The licensor
cannot terminate the license unless the licensee violates the terms in a
essential way. Terminating because of only a minor breach would probably
be seen as unfair to the licensee by a (Swedish) court. A termination of
a gift or loan causes a burden on the beneficiary which is why Swedish
courts are restrictive when applying such a harsh sanction. 2) The
benefactors understanding of his own manifestation of his own mind will
(obviously) become the prevailing factor when a court analyzes the
meaning of the license. This means that a licensee would be wise to
check with the licensor if he is in doubt about, for example, how the
term non-commercial is to be understood.
More information about the cc-licenses