Skip to Content.
Sympa Menu

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

cc-licenses AT lists.ibiblio.org

Subject: Development of Creative Commons licenses

List archive

Chronological Thread  
  • 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: Sun, 08 Oct 2006 22:14:10 +0200

drew Roberts skrev:
On Sunday 08 October 2006 09:26 am, Peter Brink wrote:

My personal opinion is that the licensor's take on the interpretation of
the license would prevail.

OK, let's say the licensor is the one with the screwy take.

Now, let me point out that someone on the list seemed to indicate that they thought the take (jurisdiction) of the licensor would "win" where the person on the other side was a "user" but that the take of the licensee might "win" where the licensee was making major transformations to the work. No one contradicted that thought.

That was me. I was talking about the choice of law rules, not about which party's interpretation of the license would be most likely to prevail in court.

It's quite possible that the licensee gets the advantage of a home court but that the court chooses to award the licensor the advantage of interpreting the license.


So, in some countries you do not need consideration to make a contract. You also do not need a meeting of the minds to form a contract either? Is that a fair statement?

I thought someone indicated that you did need such a meeting and I have been trying to figure out how that works.

A meeting of minds is (in theory) necessary to form a standard onerous contract. But open source/content licenses are not onerous contracts. They are unilateral beneficial grants of an enjoyment of a copyright. They are essentially gifts. Gifts are unilateral legal acts, there's no meeting of minds involved. It's a manifestation of one persons will - the benefactor.


Yes - this is entirely possible. Especially so when dealing with a
standard form contract drafted by party A, used by party B to form a
contract with party C. In this case both B and C might be mistaken about
the "true" meaning of the contract and then there is no common ground,
no meeting of the minds.

Does everyone agree with Peter here? Didn't someone tell me there was a need for a meeting of minds?

In theory you need a meeting of minds, but in practice sometimes this meeting of minds is an illusion, it simply doesn't exist. If the contract has already been formed and some (or all) of the obligations has been carried out the court cannot just nullify the contract, that would in most cases create more problems than it solves. The court need to "fill out" the contract so that a common ground can be reached. For example if clause violates a mandatory legal rule that clause is replaced by the mandatory rule. If a clause is unfair it's moderated. If a clause is ambiguous or just doesn't make any sense the court needs to find a reasonable replacement. It does so by employing various methods of interpretation.

Note however that when B is giving away something, the very fact that he
is an benefactor would tend (IMO) to give his interpretation a greater
significance than C's.

Let me ask a really wild question. Could CC put in the license that you could not use the license with their trademark in it unless you allowed their understanding to trump either parties? (Not asking here if this is wise, just if it is possible.)

That would make CC party to all CC licenses. In effect CC would become an arbitration court and I really don't think that is in CC's best interest.


/Peter Brink




Archive powered by MHonArc 2.6.24.

Top of Page