[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sat Oct 7 12:57:10 EDT 2006


drew Roberts skrev:
> On Saturday 07 October 2006 09:25 am, Peter Brink wrote:
[snip]
>> 1) There may be formal requirements for copyright contracts (or indeed
>> contracts as such) in certain jurisdictions (both France and Germany for
>> example has such rules IRRC) that must be met or else the license fails
>> to come into force.
> 
> So, what happens when a German wants to build on my BY-SA work which I 
> released under the English language generic one?

Since the license states that the German license can be used *in place* 
of the generic, the German text would IMO be used.

>> 2) Having a text in the local language, adapted for that jurisdiction
>> will be immensely valuable if a court needs to analyze the license.
> 
> Makes sense, but if mine is the plain BY-SA-2.0 or 2.5 say, would a court in 
> another country, say Germany, try and apply the English one which I released 
> my work under, or the German one, which I have never read?

That would depend on the choice of law rules of international private 
law. In Germany a court would base its decision on the choice of law by 
examining where the "party who is to effect the performance which is 
characteristic of the contract has, at the time of conclusion of the 
contract, his habitual residence, or, in the case of a body corporate or 
unincorporate, its central administration." (art. 4.2 of the Convention 
on the Law Applicable to Contractual Obligations). AFAIK if the work is 
merely distributed, then this would mean that the law of the licensor 
would be chosen, but if the works has been adapted (or in any other way 
heavily transformed) then the law of the licensee would be chosen.

>> A major difference btw CC and the EU is of course that CC lacks any
>> ability to enforce its own interpretation of the license. Disputes about
>> how the implementation(s) of a EU resolution or directive has been
>> carried out or about how to understand the rules of a directive or
>> regulation are arbitrated by the the Court of Justice and the Court of
>> First Instance of the European Communities. It's btw a serious mistake
>> to think that CC's opinion on how the license works would have any
>> impact on how court would interpret the license. It's the parties
>> opinions that matters.
> 
> I do see this as a danger in the whole CC world. Since I have seen it said 
> here on the list that in many places these licenses are contracts, do those 
> places have the "meeting of the minds" concepts?

Yes they do. The question is also, however, whether one should use the 
principle of trust or the principle will to define the "true" meaning of 
the contract when dealing with Open Source/Content licenses. I think 
that a court (at least here were I live ) would base its interpretation 
of the contract on the will of the licensor.

The reasons why are that:
1) the license is a beneficial grant of enjoyment and
2) its subject matter is a copyrightable enity

Both of these strongly suggests, IMO, that it's the subjective opinion 
of the licensor/copyrightholder that should govern the interpretation of 
the contract (provided of course that the license text can accommodate 
the licensor's interpretation). If neither party's interpretation of the 
license seems reasonable to the court, it will have to make it's own 
analysis.

>> In fact the entire Open Source is based on the illusion that the GPL
>> would work the same way in the U.S. and (for example Sweden) - it won't.
> 
> But if it doesn't, what do you get? No license and a fall back to standard 
> copyright? Something else?

Based on legal theory I would say that the license would be considered 
void and there would be a return to copyright law, but that is a rather 
unproductive solution. It's more likely ,I think, that a court would try 
and find a reasonable interpretation of the license. It would try and 
find a way to fit the meaning of license to the intention of the 
licensor, provided that those intentions does not collide with any 
mandatory rules or any other general principles of law.

One specific part of (almost) all open source/content licenses 
(including the CC-license) that for example a Swedish court would find 
unreasonable is the harsh termination rules. Those would most likely be 
moderated.

/Peter Brink







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