[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Sun Oct 8 18:00:17 EDT 2006

On Sunday 08 October 2006 04:14 pm, Peter Brink wrote:
> 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.

Gotcha. Thank you.
> > 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.

Again, gotcha. Again, thanks.
> >> 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. 

I find this confusing, but so be it.

> 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.

It did not seem to make sense to me either, but I thought it might be worth 
asking in case someone had other ideas.
> /Peter Brink
> _______________________________________________

all the best,

(da idea man)
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