Creative Commons - Belgium

[Yorick Cool <yorick.cool AT fundp.ac.be>]

Dear Hannelore,

Hannelore Dekeyser wrote:
> Dear Yorick,
>
> Yorick Cool wrote:
>
> > Dear Hannelore,
> >
> > to me, the key problem in the Contract vs License problem is that of 
> > reliability. In belgian law, without a contract, you owe nothing to 
> > noone. Especially, a licensor has all opportunity to change his mind 
> > and stop allowing use/modification/distribution of his software. 
> > Nothing guarantees a user against such a change of mind on the 
> > licensor's behalf except a contract.
>
>
> I agree with you here, though art. 7 b) seems to say that the Licensor 
> cannot withdraw the license.  He can stop distributing in the future, 
> but the works that are already 'in the wild' cannot be called back so to 
> speak.
I agree with you insofar as the license is considered a contract. If it 
is not, I still believe the licensor could call back the works out in 
the wild, because nothing would bind him not to (the weakness of the 
unilateral engagement). At the moment we consider the license a 
contract, I share your analysis fully.
> > What's more, the absence of any "consideration doctrine" in belgian 
> > law makes it easy to satisfy the condition of formation of a contract. 
> > Hence, there is no practical obstacle as to treating an open-source 
> > license as a contract.
> >
> > In the end, we also have to admit that "license" doesn't mean much in 
> > belgian legal speak.
>
>
> Maybe, but I see it as a unilateral act of the Licensor giving 
> permission to 'violate' his copyright monopoly.
> In practice it hardly makes a difference.
Again, I believe the difference is that the unilateral act is 
retractable. He is not bound to maintain it.
> > 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. He 
> > does say the GPL is probably not a contract, but concludes it is the 
> > only one to be in that situation. I also have a gripes with his 
> > conclusion the GPL is not a contract, but this is not the place to 
> > discuss that ;-) (I will hint that to me, copyleft gives consideration 
> > to the contract)
>
>
> My mistake, I meant Eben Moglen.  Sorry about that.
> http://www.groklaw.net/article.php?story=20031214210634851
>
> I guess we agree that it is to a large extent an academic discussion in 
> Belgian law.
Absolutely, even though I do side with Rosen more than Moglen even in 
american law. Moglen's agenda blurrs his analysis in my view. To each 
his own :-)
> Do you think my suggestion to not use the term 'contract' in the Belgian 
> CCPL is not necessary?
> I still think it might be a good idea, even if it is only to translate 
> the original text as closely as possible.
I am personnally not too fussed about it either way. Since I believe the 
license is a contract and that that should be clarified, I am rather in 
favor of the inclusion of the term. If it's not there, too bad, it won't 
change the nature of the act ;-)
> Best regards,
>
> Hannelore