[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Sun Oct 8 13:30:40 EDT 2006


Peter,

first let me thank you for your time.

On Sunday 08 October 2006 09:26 am, Peter Brink wrote:
> 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.

OK, let's say the licensor is the one with the screwy take.

Now, let me point out that someone on the list seemed to indicate that they 
thought the take (jurisdiction) of the licensor would "win" where the person 
on the other side was a "user" but that the take of the licensee might "win" 
where the licensee was making major transformations to the work. No one 
contradicted that thought.
>
> 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.

So, in some countries you do not need consideration to make a contract. You 
also do not need a meeting of the minds to form a contract either? Is that a 
fair statement?

I thought someone indicated that you did need such a meeting and I have been 
trying to figure out how that works.
>
> 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.

Does everyone agree with Peter here? Didn't someone tell me there was a need 
for a meeting of 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.

Let me ask a really wild question. Could CC put in the license that you could 
not use the license with their trademark in it unless you allowed their 
understanding to trump either parties? (Not asking here if this is wise, just 
if it is possible.)
>
>
> /Peter Brink

all the best,

drew
-- 
(da idea man)
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