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

Andres Guadamuz a.guadamuz at ed.ac.uk
Mon Oct 9 11:51:52 EDT 2006


Hello Peter, excellent message, quite a lot of food for thought there. 
The more I look at this, the more problematic it becomes with 
traditional contract formation rules.

Theoretical discussion continues:

Peter Brink wrote:

> 
> 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.
> 

In Scotland, the equivalent is "invitation to treat". This is often 
ignored when people talk about contract formation, but to me it is one 
of the most important elements, as it lets us know who has to accept. 
Invitation to treat works quite similar way to what you have described, 
and applies to an offer that is made to a large number of potential 
recipients (goods on a shelf). Moreover, we have a ruling that 
specifically rules out advertisement from constituting an invitation to 
treat.

The promissory principle also exists in Scotland.


> 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.
> 

I think that we must specify that we are talking about specific kinds of 
loans here. Financial loan agreements are indeed contracts, as there is 
an obligation to pay back with interests. This is onerous and fulfils 
bilateral obligations theory nicely. These agreements tend to be form 
contracts, and are heavily regulated (at least here in the UK).


> 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. 

There is a similar case in Scotland, where there can be silent 
acceptance. Indeed, unilateral promises do not require stated 
acceptance. I think that in the case of a CC licence, but my concern is 
precisely with the invitation to treat. I can see this developing in two 
ways:

(1) With invitation to treat (or invitation to offer in Sweden):
- Invitation to treat: the creator publishes the work under a CC licence.
- Offer: the licensee uses the work under the existing terms.
- Acceptance: the creator allows the use.

(2) Without invitation to treat:
- Offer: the creator publishes the work under a CC licence.
- Acceptance: The licensor uses the work under the terms and conditions.

I think that (1) is problematic.

> 
> 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.

I think this is a neat and clever solution! However, I disagree that 
there are no obligations under CC licence, on the contrary. Even the 
most permissive licences (BY) contain several obligations. However, 
these obligations are mostly for licensees who will modify the work and 
make those modifications available to the public. All other licences 
deal with even more obligations (share-alike, non-commercial use, TPMs).

I think that using your above analysis, we could conclude that mere use 
of the work is not a contract but a loan, but that modification and/or 
publication of the work under any of the licences will be a contract 
because the licensee is under several obligations: non-commercial use, 
TPMs, no-derivatives, copyright notices, copyleft clauses, etc.

Would you be interested in writing an article on this? :)


-- 
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh, EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz at ed.ac.uk
http://www.law.ed.ac.uk/ahrb/

IP/IT/Medical Law LLM by Distance Learning
http://www.law.ed.ac.uk/distancelearning/



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