[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sat Oct 7 18:08:58 EDT 2006


Henri Sivonen skrev:
> On Oct 7, 2006, at 16:25, Peter Brink wrote:
> 
>> There are several reasons why "localized" licenses is a must:
>>
>> 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.
> 
> Don't France and Germany have Freedom of Agreement? If the  
> prospective licensee claims that the license is not valid, the joke  
> is on him, because he doesn't get to exercise any rights under the  
> license.

Of course they have freedom of contract. But freedom of contract is 
really an illusion, there are several limitations to this right. 
Mandatory legal rules always overrides conflicting clauses in a 
contract. Unfair terms can be adjusted. Formal errors can make the 
contract void. In Germany for example one cannot enter a form-less 
contract about copyright matters, in Finland you can. In Europe the 
freedom of contract has been circumvented in order to protect parties 
which are typically weak (such as consumers and employees) from being 
abused by stronger parties (like traders and employers).

>> 3) Creators will feel safer when using a license written in their own
>> language.
> 
> What about licensees? How do I know what the terms for a photo  
> licensed under e.g. a Dutch license are if the license is a port and  
> not a mere translation?

You are free to use any compatible license. Besides the copyright laws 
of Europe are becoming more and more harmonized so this is not that much 
of an issue.

>> 4) It's necessary to be able to assure creators that the license is
>> enforceable.
> 
> That hasn't been a real problem with Free Software.

No - but I think creators of other kinds of works are more particular.

> 
>> 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.
> 
> It has worked in Germany. It might not work in *exactly* the same way  
> as in the U.S., but don't you have Freedom of Agreement in Sweden (as  
> in Finland--usually Finnish legal concepts are inherited from Sweden  
> anyway)? With Freedom of Agreement, the form (including the language)  
> of the agreement is not a problem if the parties agree to it, and you  
> have to accept the form of the GPL in order to be licensed to  
> exercise the rights granted by the GPL.

Sorry but this is not correct. The joke is on the party who wrote a 
contract that is partly unlawful, invalid or unfair. It is that party 
who will find himself being bound by terms he has never agreed to.

/Peter Brink



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