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  • From: drew Roberts <zotz AT 100jamz.com>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] ShareAlike and version compatibility
  • Date: Thu, 13 Apr 2006 17:58:01 -0400

On Thursday 13 April 2006 05:49 pm, Mia Garlick wrote:
> just to answer the question as to what CC thinks - whether it's
> licenses are only a license, not a contract; in my view, the CC
> licenses are contracts.

OK, so in the US, what does CC say the consideration is on the part of the
person making use of the license?
>
> rgds, mia
> cc gc

all the best,

drew
>
> On Apr 13, 2006, at 1:11 PM, drew Roberts wrote:
> > 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
> > --
> > http://www.ourmedia.org/node/145261
> > Record a song and you might win $1,000.00
> > http://www.ourmedia.org/user/17145
> >
> > _______________________________________________
> > cc-licenses mailing list
> > cc-licenses AT lists.ibiblio.org
> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>
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--
http://www.ourmedia.org/node/145261
Record a song and you might win $1,000.00
http://www.ourmedia.org/user/17145





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