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cc-licenses - Re: [cc-licenses] New Generic and ports

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Subject: Development of Creative Commons licenses

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  • From: Peter Brink <peter.brink AT brinkdata.se>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] New Generic and ports
  • Date: Sat, 07 Oct 2006 18:57:10 +0200

drew Roberts skrev:
On Saturday 07 October 2006 09:25 am, Peter Brink wrote:
[snip]
1) There may be formal requirements for copyright contracts (or indeed
contracts as such) in certain jurisdictions (both France and Germany for
example has such rules IRRC) that must be met or else the license fails
to come into force.

So, what happens when a German wants to build on my BY-SA work which I released under the English language generic one?

Since the license states that the German license can be used *in place* of the generic, the German text would IMO be used.

2) Having a text in the local language, adapted for that jurisdiction
will be immensely valuable if a court needs to analyze the license.

Makes sense, but if mine is the plain BY-SA-2.0 or 2.5 say, would a court in another country, say Germany, try and apply the English one which I released my work under, or the German one, which I have never read?

That would depend on the choice of law rules of international private law. In Germany a court would base its decision on the choice of law by examining where the "party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration." (art. 4.2 of the Convention on the Law Applicable to Contractual Obligations). AFAIK if the work is merely distributed, then this would mean that the law of the licensor would be chosen, but if the works has been adapted (or in any other way heavily transformed) then the law of the licensee would be chosen.

A major difference btw CC and the EU is of course that CC lacks any
ability to enforce its own interpretation of the license. Disputes about
how the implementation(s) of a EU resolution or directive has been
carried out or about how to understand the rules of a directive or
regulation are arbitrated by the the Court of Justice and the Court of
First Instance of the European Communities. It's btw a serious mistake
to think that CC's opinion on how the license works would have any
impact on how court would interpret the license. It's the parties
opinions that matters.

I do see this as a danger in the whole CC world. Since I have seen it said here on the list that in many places these licenses are contracts, do those places have the "meeting of the minds" concepts?

Yes they do. The question is also, however, whether one should use the principle of trust or the principle will to define the "true" meaning of the contract when dealing with Open Source/Content licenses. I think that a court (at least here were I live ) would base its interpretation of the contract on the will of the licensor.

The reasons why are that:
1) the license is a beneficial grant of enjoyment and
2) its subject matter is a copyrightable enity

Both of these strongly suggests, IMO, that it's the subjective opinion of the licensor/copyrightholder that should govern the interpretation of the contract (provided of course that the license text can accommodate the licensor's interpretation). If neither party's interpretation of the license seems reasonable to the court, it will have to make it's own analysis.

In fact the entire Open Source is based on the illusion that the GPL
would work the same way in the U.S. and (for example Sweden) - it won't.

But if it doesn't, what do you get? No license and a fall back to standard copyright? Something else?

Based on legal theory I would say that the license would be considered void and there would be a return to copyright law, but that is a rather unproductive solution. It's more likely ,I think, that a court would try and find a reasonable interpretation of the license. It would try and find a way to fit the meaning of license to the intention of the licensor, provided that those intentions does not collide with any mandatory rules or any other general principles of law.

One specific part of (almost) all open source/content licenses (including the CC-license) that for example a Swedish court would find unreasonable is the harsh termination rules. Those would most likely be moderated.

/Peter Brink








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