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cc-licenses - Re: [cc-licenses] ShareAlike and version compatibility

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Subject: Development of Creative Commons licenses

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  • From: Peter Brink <peter.brink AT brinkdata.se>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] ShareAlike and version compatibility
  • Date: Thu, 13 Apr 2006 15:08:32 +0200

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.

/Peter Brink




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