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cc-be - Re: [Cc-be] Q1 Contract vs Licence

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Subject: Creative Commons - Belgium

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Chronological Thread  
  • From: Yorick Cool <yorick.cool AT fundp.ac.be>
  • To: Hannelore Dekeyser <hannelore.dekeyser AT law.kuleuven.ac.be>
  • Cc: cc-be AT lists.ibiblio.org
  • Subject: Re: [Cc-be] Q1 Contract vs Licence
  • Date: Mon, 22 Nov 2004 21:23:41 +0100

Dear Hannelore,

Hannelore Dekeyser wrote:
Dear Yorick,

Yorick Cool wrote:

Dear Hannelore,

to me, the key problem in the Contract vs License problem is that of reliability. In belgian law, without a contract, you owe nothing to noone. Especially, a licensor has all opportunity to change his mind and stop allowing use/modification/distribution of his software. Nothing guarantees a user against such a change of mind on the licensor's behalf except a contract.


I agree with you here, though art. 7 b) seems to say that the Licensor cannot withdraw the license. He can stop distributing in the future, but the works that are already 'in the wild' cannot be called back so to speak.
I agree with you insofar as the license is considered a contract. If it is not, I still believe the licensor could call back the works out in the wild, because nothing would bind him not to (the weakness of the unilateral engagement). At the moment we consider the license a contract, I share your analysis fully.


What's more, the absence of any "consideration doctrine" in belgian law makes it easy to satisfy the condition of formation of a contract. Hence, there is no practical obstacle as to treating an open-source license as a contract.

In the end, we also have to admit that "license" doesn't mean much in belgian legal speak.


Maybe, but I see it as a unilateral act of the Licensor giving permission to 'violate' his copyright monopoly.
In practice it hardly makes a difference.
Again, I believe the difference is that the unilateral act is retractable. He is not bound to maintain it.


I am also quite surprised about your remarks about Larry Rosen. He explicitly advocates the "contractual" theory: "Open-source licenses should be clean well written contracts, or they may not be enforced by the courts" L. Rosen, open source licensing, Prentice Hall, p. 140. He does say the GPL is probably not a contract, but concludes it is the only one to be in that situation. I also have a gripes with his conclusion the GPL is not a contract, but this is not the place to discuss that ;-) (I will hint that to me, copyleft gives consideration to the contract)


My mistake, I meant Eben Moglen. Sorry about that.
http://www.groklaw.net/article.php?story=20031214210634851

I guess we agree that it is to a large extent an academic discussion in Belgian law.
Absolutely, even though I do side with Rosen more than Moglen even in american law. Moglen's agenda blurrs his analysis in my view. To each his own :-)

Do you think my suggestion to not use the term 'contract' in the Belgian CCPL is not necessary?
I still think it might be a good idea, even if it is only to translate the original text as closely as possible.
I am personnally not too fussed about it either way. Since I believe the license is a contract and that that should be clarified, I am rather in favor of the inclusion of the term. If it's not there, too bad, it won't change the nature of the act ;-)

Best regards,

Hannelore







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