Creative Commons - Belgium

[Hannelore Dekeyser <hannelore.dekeyser AT law.kuleuven.ac.be>]

Wouter Vanden hove wrote:
> 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.

I think article 8 b) solves this.
A gives a work with CC licence to B.
B gives it to C.

Article 8 b) states that automatically A gives a licence to C.

Legal magic. Every sublicensor has received a licence from all his 
predecessors.

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

Since you automatically have a licence from the Original Author (A in my 
example above), all you have to do is respect the licence terms 
yourself. You don't need to worry about what B does.

If B creates a derivative and distributes it in violation of the CCPL 
licence, you could have a problem.

> > 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.
Yes, but the author doesn't owe the user anything.  That was what Yorick 
meant, I think.

> > 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.
I think the CCPL adresses this in art. 7 b.

> 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. :)
This is an American doctrine, and doesn't apply in Belgian law.
Roughly it means that both parties must get *something* out of a 
contract, otherwise it isn't valid.
So, if A gives you a car but doesn't get anything in return, the deal is 
 not a contract.  How this applies to CCPL is under debate.


In Belgium you have a contract when you agree to something.
For instance A gives a car to B and B agrees to accept it.  It doesn't 
matter whether or not B gives something back.
> > 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?
You can accept a contract by saying 'I accept'.
You can accept a contract by opening the box of a product (acceptance by 
breaking a seal).
You can accept a contract by using a work, if you knew or should have 
known that by using it you are accepting a contract.

So using a CCPL'ed work can mean accepting a contract in Belgian law.
However, in practice it isn't always clear when you should have known 
that using means accepting a contract.

> > 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?
This is different. These are examples of administrative decisions.  The 
government gives you permission to drive a car, to fish ...
Calling it a licence is everyday language, not legal jargon.

In legalese these are goverment decisions.
> > 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"
This is American law.  In Belgium all you need is an offer and acceptance.
His conclusions aren't per se relevant to the Belgian discussion.

In the US, it is better for Open Source licences to be a licence and not 
a contract.  Copyright law (and therefor) licences are regulated by 1 
federal law on copyright.  Contracts law is state law, so 50 different 
contract laws would apply.

> > 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?
Again, in the American context.

> 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.

It is different in every country.

Kind regards,

Hannelore

> wouter Vanden Hove
> www.opencursus.org
> www.vrijschrift.org
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--
Hannelore Dekeyser
Researcher
Interdisciplinary Centre for Law and Information Technology
Faculty of Law - K.U.Leuven
Tiensestraat 41
3000 Leuven

Tel: +32 16 32.54.70
Fax: +32 16 32.54.38
E-mail: hannelore.dekeyser AT law.kuleuven.ac.be
Website: http://www.law.kuleuven.ac.be/icri