Brent Tubbs wrote: > > > On Wed, Feb 24, 2010 at 5:53 PM, Jason Giglio <gigstagg...@gmail.com > <mailto:gigstagg...@gmail.com>> wrote: > > Darmath wrote: > > Having read the TOS i'm comfortable in saying that it is reasonably > > clear that two exchanges don't take place, but that the agency > > situation, with LL existing as a mutual agent, would apply to SL. > >> Darmath wrote: > > The CC-SA-By is not a contract, it's a copyright license. > Contract law > concepts are mostly irrelevant. > > If you fail to comply with the license, then your right to distribute > the work terminates, and you are committing copyright infringement if > you continue to distribute. You aren't in breach of contract. > > Your remedies would be limited to those under copyright law, not > contract law. This is a common confusion, mostly because > companies like > Microsoft have conflated copyright licenses with copyright law with > their contract-like EULAs. > > > You sound a lot more sure of this than I think is warranted. There's > nothing stopping licenses from being contracts and vice versa. If > there's an offer, an acceptance, and an exchange of value (even just > promises to do or not do something), then there's a contract, even if > the word "contract" never appears in the text. > > > > _______________________________________________ > Policies and (un)subscribe information available here: > http://wiki.secondlife.com/wiki/OpenSource-Dev > Please read the policies before posting to keep unmoderated > posting privileges > > > ------------------------------------------------------------------------ > > _______________________________________________ > Policies and (un)subscribe information available here: > http://wiki.secondlife.com/wiki/OpenSource-Dev > Please read the policies before posting to keep unmoderated posting privileges > ------------------------------------------------------------------------ > > > No virus found in this incoming message. > Checked by AVG - www.avg.com > Version: 9.0.733 / Virus Database: 271.1.1/2707 - Release Date: 02/24/10 > 18:34:00 > > I'll start by saying i'm actually a law student. And whilst by no means does that make me a legal expert yet, and intellectual property law is not something that i have examined in depth (but will do according to the laws of Australia where I reside over the course of the coming months) I must say that as a law student the logic behind the statement that a copyright licence is not a contract completely confounds. It confounds me to the point that in the absence of court authority to the contrary it will be outrightly rejected.
As I understand law surrounding copyright the transfers of rights in relation to a copyright is very much like the position with respect to leases and licenses with respect to real property (land). When I enter into a license in respect of land I enter into a contract that confers upon the licensee a right to enter my land. But that right is very much a contractual right. The contract confers in personam rights to the licensee that if I infringe I may be sued for in contract. Therefore if i wrongful interfere with your right to be on my land then i may be liable in contractual damages for the infringement of the. When the licensee however steps outside of the terms of our license then I terminate his contract with me under which he acquired rights to be on my land and then I enforce my property law rights against him to eject him from my land. Note that although neither of the parties may have referred to the license as a contract it is very much a contract. In the case of a lease with respect to real property than the lessor and the lesses enter into a contract which transfers a proprietary interest to the lesssee. As between lessor and lessee their is both a contractual relationship. That contractual relationship operated to transfer property. Now you may be wondering why i'm discussing land law when the original topic was intellectual property, named copyright, then again you may not. But in my opinion the real position, which i think you may have failed to understand is this. A copyright license in my opinion must in its nature be contractual. Like in the case of a license with respect to land I confer rights in respect of a property in this case the copyright. That is when I as a content creator enter into a copyright license i grant people the legal right, pursuant to a contract, to deal with my property. However, where the licensee steps outside the bounds of that agreement, I am entitled, just as i did in the case of the above position with regards to lands to terminate that agreement bringing an end to the licensees rights to act in relation to the property and then enforce my property rights against them that are created and regulated by statute. Perhaps the best way to appreciate why a copyright license would constitute a contract is to consider the position of the licensee where the licensor of the copyright content decided that they would repudiate the license agreement unlawfully. Are you going to try and suggest to me that the licensee has no legal recourse? No i dont think you will. And if you accept that the licensee must have a legal recourse than ask yourself what will the basis of their action be? Well surely that to me sounds like an action based upon the legal agreement that the licensee and licensor entered into that gave the licensee the rights to act in relation to the property? If it wasn't a contract there would be no legal recourse at all. In otherwords why is it that the transfer of rights to act with respect to the property was effective at all. Sure the legislation of the relevant jurisidiction creates certain statutory licenses but the type of license, that we are discussing is not one, as I understand it, is not one that could be regarded as a statutory license of any sort. Kind regards Darren _______________________________________________ Policies and (un)subscribe information available here: http://wiki.secondlife.com/wiki/OpenSource-Dev Please read the policies before posting to keep unmoderated posting privileges
