[cc-licenses] Am I a contract or not - that is the question...?

Peter Brink peter.brink at brinkdata.se
Mon Oct 9 10:13:47 EDT 2006

The following is a somewhat theoretic piece of text and is a clearly 
civil law oriented alternative way of looking at the license. Food for 
thought for some, needs to be taken into careful consideration by others 
(like the Swedish CC-team) – IMHO of course.

Andres Guadamuz skrev:
 > In my very personal view, you have a contract in copyright licences in
 > most civil law systems because the offer takes place when the work is
 > made available to the public under a licence, while the acceptance
 > takes place when the licensee uses the work under those terms.
 > However, in some systems the making available to the public would be
 > an invitation to treat, and NOT  an offer, which could mean that you
 > may not have a contract until the licensor has made an unequivocal
 > acceptance. The intention to enter into a legal relationship is clear
 > on the fact that the work has been made available under a licence.

There's a problem with the offer here though (that I just realized 
myself). There are in most civil law jurisdictions some retirements on 
an offer, it must be:

1) addressed to one or more specific persons and
2) be sufficiently definite and
3) indicate the intention of the offeror to be bound in case of acceptance.
(cf. CISG art. 14(a))

Our problem is that the license is addressed to an indefinite number of 
people. If we have another look at CISG, in 14(2) it's stated that "[a] 
proposal other than one addressed to one or more specific persons is to 
be considered merely as an invitation to make offers, unless the 
contrary is clearly indicated by the person making the proposal."

This description very nicely fits the CC-license. There's an offer, not 
very explicit but still and the offer is obviously not targeted at a 
specific person or a specific set of persons. Needless to say the 
interpretation of whether or not the CC-licence's offer is really an 
offer will vary from jurisdiction to jurisdiction, but there is really 
no clear indication of that the license is an offer (in the first place) 
and even less that it's not an invitation to make an offer. And in 
Sweden at least, that means that the offer is not binding to the 
licensor, i.e. he can revoke it. Since Sweden uses the promissory 
principle and not the contract principle (when forming contracts) an 
offer is normally bound by his offer until it's accepted or rejected and 
that's why it matters to us if the CC-license contains an offer or not. 
Since the promissory principle is quite widely used this might be 
problem elsewhere as well.

Now there's is always more than one way of skinning a cat. One way of 
handling the CC-license is to treat it as a loan (not as gifts [as I 
have confusingly said in previous posts] though - a gift transfers the 
ownership of a piece of property). A loan isn't really a contract. Loans 
are sometimes called contracts but that's is a bit of a misnomer, a 
contract consists of two unilateral legal acts that (in theory) 
manifests one will, a loan however is a unilateral legal act manifesting 
*one* persons will.

In Sweden, as a general rule, a benefactor isn't bound by his promise 
until he actually transfers the property. If he has presented the 
beneficiary with a written deed (for example a promissory note) or made 
the promise in public he is, however, bound by his promise.
There is no real need of an formal acceptance of a gift or loan, the 
beneficiary's actions is often enough. If he makes use of the beneficial 
act he has accepted it. When a beneficial transaction has been carried 
out it cannot easily be revoked, unless the benefactor has stipulated 
some terms for the beneficial act. Such terms may very well resemble 
ordinary contract clauses - the springing point is if the terms creates 
such a burden on the beneficiary that the gift or loan looses its 
beneficial character, if that is the case then the beneficial act morphs 
into onerous contract.

It's fairly obvious (IMO) that releasing a work under a CC-license is a 
beneficial act. The copyright holder (the benefactor) grants anyone in 
the world the right to use his work in ways they would not have been 
able to do without his permission and there is no demand of any monetary 
compensation. There are however terms associated with the loan. The 
question is then if the terms associated with the CC-licenses creates 
such burdens on the licensee that the license stops being a beneficial 
legal act and becomes a onerous contract instead.

The terms are:

a) You must include a copy of, or the Uniform Resource Identifier for, 
this License with every copy or phonorecord of the Work You distribute, 
publicly display, publicly perform, or publicly digitally perform.

b) You may not offer or impose any terms on the Work (or any Derivative 
Works) that alter or restrict the terms of this License or the 
recipients' exercise of the rights granted hereunder.

c) You may not sublicense the Work.

d) You must keep intact all notices that refer to this License and to 
the disclaimer of warranties.

e) You may not distribute, publicly display, publicly perform, or 
publicly digitally perform the Work (or any Derivative Works) with any 
technological measures that control access or use of the Work in a 
manner inconsistent with the terms of this License Agreement.

f) You must keep intact all copyright notices for the Work and provide, 
reasonable to the medium or means You are utilizing: ...

The last term (f) is already required by law (in Sweden at least), so 
that cannot be said to be a burden imposed by the benefactor. A can 
hardly be called a burden, neither so D. It cannot be considered an 
onerous task to maintain a few pieces of information about the work. B 
is also hardly a burden, the benefactor request that you do not alter 
the effects of his beneficial act, which is very reasonable. That the 
beneficiary may not issue sublicenses follows from the fact that there 
has been no transfer of ownership, the licensee only borrows some parts 
of the copyright holders rights, so C is also hardly a burden. That the 
  beneficiary is forbidden to impose any technological measures that 
might alter the benefactors intentions with his beneficial act does not 
create an onerous burden on the beneficiary. It follows from an unspoken 
rule that the beneficiary should respect the wishes of the benefactor.

It's quite possible IMO to take the position that the license does not 
impose any obligations (in a contractual sense) on the licensee. The 
CC-license can therefore be seen as neither an license nor an contract 
but a loan. It's not a license because such an legal instrument does not 
exist in civil law jurisdictions. It's not strictly a contract because 
it's a beneficial legal act and not an onerous one. It's a loan because 
it does not transfer any ownership of property.

This line of reasoning has two interesting results. 1) The licensor 
cannot terminate the license unless the licensee violates the terms in a 
essential way. Terminating because of only a minor breach would probably 
be seen as unfair to the licensee by a (Swedish) court. A termination of 
a gift or loan causes a burden on the beneficiary which is why Swedish 
courts are restrictive when applying such a harsh sanction. 2) The 
benefactors understanding of his own manifestation of his own mind will 
(obviously) become the prevailing factor when a court analyzes the 
meaning of the license. This means that a licensee would be wise to 
check with the licensor if he is in doubt about, for example, how the 
term non-commercial is to be understood.

/Peter Brink

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