[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sun Oct 8 09:26:47 EDT 2006


drew Roberts skrev:
> On Saturday 07 October 2006 07:11 pm, Peter Brink wrote:
>> 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?

Yes.


>> 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?

Your question was: "is someone, using a CC licensed work, actually safe if:
a) they are using the works in a manner that CC intended and
b) in a manner that most people putting CC licenses on their works 
understand and
c) if they happen to use a work of someone who has a screwy take on the 
meaning of the license but
d) one where if you wink just right the license might be bent to mean 
that?"

My personal opinion is that the licensor's take on the interpretation of 
the license would prevail.

While it's true (like Andres says) that the CC license is a standard 
form contract it's also a factor that they are beneficial grants of 
enjoyment done by a copyrightholder.

In a few cases dealing with beneficial grants of enjoyment of the right 
to use real estate the Swedish Supreme Court used the rules for 
interpreting wills when settling the disputes. In a case where a 
copyrightholder had a dispute with his publisher over a ambitiously 
drafted contract, the court found in favour of the copyrightholder 
mainly because of a rule (the so called specification principle) saying 
that ambiguous clauses and/or clauses that are very far reaching (or 
have an undefined reach) are unfair to the copyrightholder.

IMO if a creator can present a credible interpretation of the license 
that is not unreasonable and does not create an undue burden on the 
licensor then a court (here in Sweden at least) would tend to base it's 
decision on that.

A open source/content license is really a gift. And the legal system 
protects beneficiaries.

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

Yes - this is entirely possible. Especially so when dealing with a 
standard form contract drafted by party A, used by party B to form a 
contract with party C. In this case both B and C might be mistaken about 
the "true" meaning of the contract and then there is no common ground, 
no meeting of the minds.

Note however that when B is giving away something, the very fact that he 
is an benefactor would tend (IMO) to give his interpretation a greater 
significance than C's.


/Peter Brink



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