Creative Commons - Belgium

[Wouter Vanden hove <wouter.vanden.hove AT pandora.be>]

Yorick Cool wrote:
> Dear Hannelore,

> to me, the key problem in the Contract vs License problem is that of 
> reliability.

I thought the key problem was with downstream users and modifiers who 
never were in contact with the original author.

And what happens if somebody in the distributors-chain violated the license?


> In belgian law, without a contract, you owe nothing to 
> noone. 

Due to the default copyright law and the Berne Convention
a user of a copyrighted work owes permission to the author.

You need written permission from an author to distribute a work. A 
license is that written permission.


Especially, a licensor has all opportunity to change his mind and
> stop allowing use/modification/distribution of his software.

License means "You are allowed to..."
it allows you to do something that would otherwise be illegal.

If an author gives you an *irrevocable* license to distributie his work, 
then that's what you are allowed to do.


 Nothing
> guarantees a user against such a change of mind on the licensor's behalf 
> except a contract.

A licensor can and may change his licensing-decision.
But the copies that are out in the wild, already have a permission to 
distribute/modify attached.

If you have a CC-licensed website, you can remove it anytime.
you don't have a single obligation to the visitors of your website.


> What's more, the absence of any "consideration doctrine" in belgian law 
> makes it easy to satisfy the condition of formation of a contract. 
Can you explain "consideration doctrine"?
I am not a lawyer. :)



> Hence, there is no practical obstacle as to treating an open-source 
> license as a contract.

I thought a contract could only be valid if both parties read it and 
agreed to it.
If a contract, does this mean the CC-license must be preceed to the 
work, force the user to read it and agree upon it, like a software-EULA?


> In the end, we also have to admit that "license" doesn't mean much in 
> belgian legal speak.

Driver's license...
fishing license...
sports license...

don't mean much in belgian legal speak?



> I am also quite surprised about your remarks about Larry Rosen. He 
> explicitly advocates the "contractual" theory: "Open-source licenses 
> should be clean well written contracts, or they may not be enforced by 
> the courts" L. Rosen, open source licensing, Prentice Hall, p. 140. 

This contradicts Eben Moglen.

Default copyright law makes the big difference.
You don't have anything like that with ordinary contracts.

Enforcing the GPL, I
http://emoglen.law.columbia.edu/publications/lu-12.html

Enforcing the GPL, II
http://emoglen.law.columbia.edu/publications/lu-13.html

The GPL is a License, Not a Contract, Which is Why the Sky Isn't Falling
http://www.groklaw.net/article.php?story=20031214210634851

Inside the GPL: Licenses Versus Contracts
http://www.awprofessional.com/articles/article.asp?p=212176&seqNum=3

"There are a number of things that a contract must have in order to be 
legally binding. For example, a contract usually consists of the 
following items, and in many cases is required to include these items:

    * Offer
    * Acceptance of the offer
    * Promise to perform
    * Valuable consideration
    * Terms and conditions for performance
    * Performance"


> He does say the GPL is probably not a contract, but concludes it is the 
> only one to be in that situation. 

GPL the only FLOSS license not to be a contract?



I also have a gripes with his
> conclusion the GPL is not a contract, but this is not the place to 
> discuss that ;-)
I believe the discussion "license versus contract" is generic to all 
FLOSS-like licenses.



wouter Vanden Hove
www.opencursus.org
www.vrijschrift.org