[cc-licenses] Am I a contract or not - that is the question...?

Peter Brink peter.brink at brinkdata.se
Mon Oct 9 14:18:43 EDT 2006


Andres Guadamuz skrev:
> 
> 
> (1) With invitation to treat (or invitation to offer in Sweden):
> - Invitation to treat: the creator publishes the work under a CC licence.
> - Offer: the licensee uses the work under the existing terms.
> - Acceptance: the creator allows the use.
> 
> (2) Without invitation to treat:
> - Offer: the creator publishes the work under a CC licence.
> - Acceptance: The licensor uses the work under the terms and conditions.
> 
> I think that (1) is problematic.
>

Nr. 1 is indeed problematic in the case of an onerous contract. An offer 
must be visible to the acceptor. It's not theoretically possible to have 
an invitation to offer followed by an "silent" or implied offer after 
which comes an equally silent or implied acceptance. The offer must be 
explicit. If the licensee is supposed to offer the licensor to form a 
contract based on the license text that offer must be visibly targeted 
at the licensor and that would almost never be the case with any open 
source/content license.

Nr. 1 is however not problematic in the case of a beneficial act. The 
benefactor can bind himself to his own promise without any acceptance 
from the licensee. The offer-acceptance mechanism is avoided if we treat 
the license as a loan of copyrights.

Nr. 2 does not work in Sweden (or the rest of Scandinavia and AFAIK in 
Germany, Austria and Switzerland as well). There is no offer in the 
license just an invitation to make an offer.

>> 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.
> 
> I think this is a neat and clever solution! However, I disagree that 
> there are no obligations under CC licence, on the contrary. Even the 
> most permissive licences (BY) contain several obligations. However, 
> these obligations are mostly for licensees who will modify the work and 
> make those modifications available to the public. All other licences 
> deal with even more obligations (share-alike, non-commercial use, TPMs).

Well, provided that we are dealing with a beneficial "contract" those 
terms would probably not be treated as contractual obligations in Sweden 
but as instructions or regulations, i.e. as rules of behaviour. It's 
quite possible to bind a beneficiary to a set of instructions about how 
he/she should treat a given or loaned piece of property. If I gave away 
a horse I could instruct the receiver of the horse on how he should 
treat the it. If I would have sold the horse those instructions would 
have been labeled as obligations but that is not the case when I give 
the horse away. A unilateral legal act cannot force obligations on 
another party. A obligation is at it's most fundamental level a transfer 
of something which has a value from one party to another. Rules which 
describes how the licensee must behave need not transfer any value from 
the licensee to the licensor, in fact I don't see that any of the terms 
of the license creates an onerous burden on the licensee.

> I think that using your above analysis, we could conclude that mere use 
> of the work is not a contract but a loan, but that modification and/or 
> publication of the work under any of the licences will be a contract 
> because the licensee is under several obligations: non-commercial use, 
> TPMs, no-derivatives, copyright notices, copyleft clauses, etc.

See above...

> Would you be interested in writing an article on this? :)
> 

Hmm, well I *have* been thinking of it. If I do write something I'll 
probably write something in Swedish first and then try and have it 
published in one of the Swedish legal periodicals before trying to write 
something up in English.


/Peter Brink



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