[cc-community] Lawyers Discussing CC License For Their Blog

drew Roberts zotz at 100jamz.com
Fri Apr 8 16:53:25 EDT 2005


First off, thanks for the thoughtful replies.

On Friday 08 April 2005 12:29 pm, Peter Brink wrote:
> drew Roberts skrev:
> > On Friday 08 April 2005 06:07 am, Peter Brink wrote:
> >>That is an undue condition. In Sweden such a condition would likely be
> >>seen as an attempt to circumvent a mandatory law, and (IMHO) a Swedish
> >>court would find such a term unlawful per se.
> >
> > I know they would, the question is, what would an American court find? I
> > is definately an attempt to circumvent that law, that is the point of the
> > question/investigation.
>
> Well, I guess a US court could be quite OK with the arrangement, but
> don't take my word for it, I'm no expert on US law.
>
> If the Swedish party changes hers/his mind, a Swedish court could still
> be convinced that the agreement would violate Swedish public order. 

I expect they would and I don't know how the money that is due under the 
agreement could be collected, but the copyright transfer seems like it would 
take place. Do you think the Swedish court would try and issue an order 
reversing the action of the copyright transfer worldwide?

> In 
> any given jurisdiction there might be some legal principles that are so
> fundamental to that society that the jurisdiction in question will
> refuse to respect provisions in contracts or court orders from foreign
> jurisdictions that violates such principles. A Swedish example would be
> our rejection of capital punishment. For example, an request from an
> foreign court of the arrest and extradition of a person suspected of a
> crime that might result in a capital punishment in the foreign
> jurisdiction will be rejected by a Swedish court.
>
> A foreign contract whose obvious purpose is to circumvent a mandatory
> rule (such as moral rights) could also violate Swedish public order. The
> literature on the subject suggests that a otherwise "normal" contract
> (e.g. a work for hire contract) that results in a complete transfer of
> copyright from one party to another would not be subject to any
> rejection based on Swedish public order. 

Ah, so work for hire deals can work in Europe and the actual writer does not 
get moral rights? The employer does? If so, thanks for the additional 
education.

> It's the purpose of the 
> contract that matters and in the case of Drew's arrangement the purpose
> is obviously to circumvent the law, so in that particular case I think
> one could very well get a Swedish court to reject either the contract as
> such or those provisions who work to circumvent Swedish law.

I already accepted from earlier discussions that the Swedish court would find 
those provisions of the contract invalid for the reasons stated. (Is this the 
case even though the contract is executed in another country? I am assuming 
so.)

Indeed, it is the purpose to circumvent the law, well perhaps no exactly, just 
an effort by a person living in a country where such protections don't exist 
to try and not be effected by the laws in another country where those laws 
exist.

I know I am repeating myself, but I am not saying I think this is a good idea, 
or one I would want to persue.
>
> > No one said anythin about forcing this agreement on anyone, or flying
> > them to America against their will.
>
> Well the words "...get you to sign..." gave me an impression of force...

Yes, poor wording on my part perhaps. I could have said let them (which is 
what I meant) or make them (which is what you got.)
>
> [snip]
>
> > Now I find out about this action (I are in America remember and have in
> > fact never been to Europe) and I point it out to the law firm holding the
> > papers in escrow. They investigate and release the papers to me. Now I am
> > in posession of a legal transfer of copyright and thus completely own the
> > work in parts of the world where moral rights do not apply. I would not
> > own the moral rights in countries where they do. Would I own the economic
> > rights there?
>
> Your (theoretical) arrangement still doesn't sound very decent to me...
> Regardless, it's quite possible to do an exclusive global transfer of
> the economic rights to a work. So, yes you would own the economic rights.

Right now I am not considering decent, wise, etc, just possibilities. 
Presumably, the person signing would charge enough to sign such papers that 
they are comfortable risking their reputation for that amount. I haven't 
thought much about this particular wrinkle of the equation that would result.

all the best,

drew



More information about the cc-community mailing list