[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Sat Oct 7 21:05:01 EDT 2006

On Saturday 07 October 2006 07:11 pm, Peter Brink wrote:
> drew Roberts skrev:
> > On Saturday 07 October 2006 12:57 pm, Peter Brink wrote:
> [snip]
> > 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.

So, in those places (at least some of them?) consideration is not needed. Is 
that a fair statement?
> > 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. 

I didn't say any screwy interpretation. I tried to indicate one that no one 
else had but that actually made some sense with respect to the wording of the 
license. So, if a licensor has a reasonable interpretation for the license, 
one not shared by just about anyone else on the planet, but reasonable none 
the less, and if the court will generally give credence to the intention of 
the licensor, where is my question going wrong?

> In the end, if neither party can come up with a credible 
> interpretation, the court will make its own analysis of the license text .

Forgive me for asking again and again, but I must be asking in a way that is 
unclear, or I am too dense today to get the point of the answers.

You can have a contract where there has been no meeting of the minds then?
> >> 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

all the best,

(da idea man)
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