[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Sat Oct 7 15:12:48 EDT 2006


Peter,

thank you for your reply.

On Saturday 07 October 2006 12:57 pm, Peter Brink wrote:
> 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.

This seems to make some sense, but I find it confusing with respect to what 
you say below.
>
> >> 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.

OK, here is the below part I mentioned above. So, I make a BY-SA work and 
release it. (I am actually in the Bahamas, but for the sake of this, let's 
pretend I am in the US.) Someone makes a big time adaptation of it. That 
someone is a German living in Germany.

Now, let's put these two things together. There is some sort of dispute. 
According to the first part, the German court (would it end up in the German 
court?) would use the german version of the contract and according to the 
second part they would base their interpretation of the contract on the will 
of the licensor. (Are you sure you don't mean on the understanding of what 
the licensor thought he was doing?) That would be me who doesn't understand a 
word of German (well, perhaps a few words) and who doesn't know anything 
about German law.

Is t hat about right?


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

So, in those places, is consideration necessary and if so, what consideration 
would be imputed?
>
> 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. 

Indeed it would. So, is somene using a CC licensed work actually safe if they 
are using the works in a manner that CC intended and in a manner that most 
people putting CC licenses on their works understanf if they happen to use a 
work of someone who has a screwy take on the meaning of the license but one 
where if you wink just right the license might be bent to mean that? (I hope 
that is clear enough for you to understand. I don't think it is all that 
clear.)

> 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.

So, the court would force a person to allow use of their copyrighted works 
without payment? Or would the court be likely to set payment terms?
>
> /Peter Brink

all the best,

drew
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