[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sat Oct 7 19:11:53 EDT 2006

drew Roberts skrev:
> On Saturday 07 October 2006 12:57 pm, Peter Brink wrote:
> 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 that about right?

If you believe that a German licensor has violated the license, you have 
the option of suing him at a court for contract violation (and possibly 
copyright infringement as well). You could try and sue him in the U.S., 
which may or may not work. It's more probable that you would have to go 
to German court. The German court will use German international private 
law to decide whether it is the right forum for the conflict. If it 
finds that this is the case it will apply German law to the contractual 
relation. If you present the generic license and claims that to be the 
"true" contract, the court will port the license to German law and then 
interpret it. And that port need not be the same as the German CC 
license... If you use the German license the port is already done an the 
court will base its analysis on a license that CC has guaranteed to have 
the same legal effect (or at least as close as possible under German 
law) as the generic one. In this particular case it's in fact safer for 
you to use the German license.

>> 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?

Consideration is a common-law legal construction. The concept is not 
used in civil code countries. It's possible to have an entirely 
beneficial contract, where one party obligates himself to do something 
without any kind of compensation. Gifts are the typical example of such 
"contracts". Most lawyers would not, however, label gifts as "contracts" 
and contract law only partly apply to gifts in many jurisdictions.

> Indeed it would. So, is someone 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 understand 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.)

What CC intends doesn't really matter much. What matters is what a 
reasonable person might have intended with the language of the license. 
That is why the text of the license must be as unambiguous as possible. 
However, a court will not (given proper argumentation by the other 
party) buy just about any screwy interpretation a licensor can come up 
with. In the end, if neither party can come up with a credible 
interpretation, the court will make its own analysis of the license text .

>> 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?

A Swedish court would probably find that it would be unfair on the 
licensee if a minor breach of the terms of the license would lead to a 
termination of the license. There must be an equity btw severity of the 
breach and its effects.

/Peter Brink

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