[cc-licenses] New Generic and ports

Peter Brink peter.brink at brinkdata.se
Sun Oct 8 16:14:10 EDT 2006


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

That was me. I was talking about the choice of law rules, not about 
which party's interpretation of the license would be most likely to 
prevail in court.

It's quite possible that the licensee gets the advantage of a home court 
  but that the court chooses to award the licensor the advantage of 
interpreting the license.

> 
> 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 meeting of minds is (in theory) necessary to form a standard onerous 
contract. But open source/content licenses are not onerous contracts. 
They are unilateral beneficial grants of an enjoyment of a copyright. 
They are essentially gifts. Gifts are unilateral legal acts, there's no 
meeting of minds involved. It's a manifestation of one persons will - 
the benefactor.


>> 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?

In theory you need a meeting of minds, but in practice sometimes this 
meeting of minds is an illusion, it simply doesn't exist. If the 
contract has already been formed and some (or all) of the obligations 
has been carried out the court cannot just nullify the contract, that 
would in most cases create more problems than it solves. The court need 
to "fill out" the contract so that a common ground can be reached. For 
example if clause violates a mandatory legal rule that clause is 
replaced by the mandatory rule. If a clause is unfair it's moderated. If 
a clause is ambiguous or just doesn't make any sense the court needs to 
find a reasonable replacement. It does so by employing various methods 
of interpretation.

>> 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.)

That would make CC party to all CC licenses. In effect CC would become 
an arbitration court and I really don't think that is in CC's best 
interest.


/Peter Brink



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