Development of Creative Commons licenses

[drew Roberts <zotz AT 100jamz.com>]

On Thursday 13 April 2006 09:08 am, Peter Brink wrote:
> drew Roberts skrev:
> > Let's assume for a second that it would be a contract in Europe, are
> > consideration and "a meeting of the minds" necessary conditions for
> > contracts there? If so, what would be the consideration?
>
> The concept of "consideration" is a common law legal concept. In fact,
> when we enter the field of legal theory you will find that the
> differences between civil law jurisdictions and common law jurisdictions
> become more pronounced. One of the "features" of the civil law tradition
> is its heavy reliance on legal theory (as compared to common law that is
> formed by case law). Civil law is, in fact, pretty much equal to legal
> science. Preciseness and predictability is its prime objectives.
>
> Needless to say there are copious amounts of works devoted to the law of
> contracts, so the following is a very brief overview. It is also based
> on Swedish law, which differs from continental law in this particular
> field. Sweden does not have a large civil code book, as does Germany,
> France, and Italy etc. A large part of Swedish contract law is still
> non-codified, the gaps being filled by the use of analogies from written
> law.
>
> That being said the basis of contract law in Europe (as in most parts of
> the world) is the offer of and the acceptance of obligations. Party A
> offers something to B under certain conditions, B accepts and in doing
> so becomes obligated to perform what A requested. The classic example
> being a purchase; A offers to sell something to B for a given amount of
> money, B accepts and becomes obligated to pay A the sum that was agreed
> upon. A is in turn obligated to perform his part, the delivery of the
> sold goods. So a contract is an exchange of obligations.
>
> However not all exchanges of obligations are contracts. There are some
> basic requirements. The exchange must be voluntarily and the offer and
> the acceptance must be in accord. To put it in another way: both parties
> must intend to be obligated, and the expressions of this intent must be
> in accord.
>
> If only one party intends to bound by an obligation and unilaterally
> expresses this intention we don’t have a contract properly. What we have
> is a gift. Gifts are unilateral legal acts which only binds the benefactor.
>
> If the expressions of intent are in discord we normally still have a
> valid contract but we might have problems when we try to determine what
> has been agreed upon.
>
> It's perfectly possible to have contract, written by one of the parties,
> where the terms of the contract can only be accepted or refused by the
> other party. Such contracts are called adhesion contracts. In this case
> the expression of intent is usually the contract itself.
>
> So to answer your question. No – a consideration is not necessary. A
> "meeting of minds" is however.
>
> > And how could a meeting of the
> > minds be imputed with respect to a person from a jurisdiction with the
> > concept of a license who thought they were issueing a license and not
> > entering into a contract?
>
> That would depend upon international private law. More precisely - the
> rules regarding the choice of laws and these rules are not easy to
> understand and are thus largely the domain of legal professionals. In
> Europe we have reasonably robust rules that would make it possible to
> predict what laws would apply to a contract such as CCPL. If one of the
> parties lives in the US the matter becomes more uncertain...
>
> > Is this whole jurisdictional adaptation and the cross jurisdiction clause
> > really a big legal minefield? (I hope I am being clear as to my concern
> > here.)
>
> Well, that depends on where you live and where the other party lives...
> It also depends on how you intend to use a CCPL:ed work. If you only
> want to make large amounts of copies of a work or redistribute the work
> then there should be no problems. If, however, there is a dispute over
> the meaning of the term "commercial" then it might be a real problem.

Thanks for your answers. Actually, in that last question, I was thinking more 
from the point of view of a person creating a work and licensing it under 
say, CC BY-SA where the person lives in the US or somewhere else the a 
license can exist (I still have not had an answer as to whether CC considers 
the licenses to be licenses or contracts and I don't remember if the license 
itself says so but I do remember reading that the GPL guys think of the GPL 
as a license and not a contract. Whew!) and thus their intent is not to enter 
into a contract under any conditions WRT the licensing of their work. So, 
could such a person find themselves bound to a contract they never 
contemplated entering as a result of how these optional jurisdictional 
clauses work? (Again, I hope it is clear what I am asking.)
>
> /Peter Brink

all the best,

drew
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