creative commons [LWN.net]

From:		Theo de Raadt <deraadt@cvs.openbsd.org>
To:		lwn@lwn.net
Subject:		creative commons
Date:		Mon, 30 Dec 2002 16:43:23 -0700

There is a serious problem with these new licenses: they are
contracts, or an agreement between two parties.

The typical 2-4 line BSD or MIT "licenses" that we are familiar with
are not contracts. These headers simply "give up" rights gauranteed
by the government under copyright law. As such, they do not need to
be contracts -- an agreement between two parties -- because the
government has established the exact rules under which copyright works
BY DEFAULT. (I don't need a contract with people that guarantees that
they will not kill me; the government has laws for that. In less
extreme cases the same applies to other laws too: the government
establishes laws and policies for ONE-WAY responsiblity. If a cement
truck runs into my house, there is a ONE-WAY responsibility
established by law).

Since the licenses I talk about just "give up" rights, there is no
need to have a two-way agreement. Regular copyright protections for
the publisher remain in effect, except for those explicitly waived.

A waiver is not a contract. A BSD or MIT copyright "rights waiver
attachment" is not a contract.

Anyways, I believe that heading towards contract law for these extra
things is a very serious mistake. The assumption here by the lawyers
who are drafting these, I suspect, is that they believe copyright law
will eventually fail us. (Or maybe they want it to?)

But is it really right that one hand our community is trying to get
copyright law to be reinforced as it is designed and was intended to
work -- and not weakened -- while the other hand there is an approach
which is heading towards give-money-to-lawyers contract law?

Oh wait! Perhaps in fact that is not what is going on. Perhaps these
creative commons people are just lawyers trying to capitalize in the
future on weak understanding by the public of how strong copyright law
is, and instead, are trying to guide a gullible community into the
financial quagmire of contract law.

Naw, that couldn't be...

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creative commons

Posted Jan 10, 2003 13:16 UTC (Fri) by copsewood (subscriber, #199) [Link]

A contract exists in a surprising number of situations, a few explicitly written and consented but most implicit. I can't buy a chocolate bar from a newsagent without an implicit contract for example. Most of the time this works fine without needing involvement by lawyers due to Common Sense.

Lawyers get involved to a significant extent in the exceptional situation when 2 well-resourced parties are unable to agree about the nature of a contract. The GPL worked very well for many years without requiring more than an occasional lawyer's letter to enable parties to reach agreement out of court, prior to the recent dispute between 2 companies involved in supporting the MySQL database, where the GPL stood up to legal scrutiny and ended up having its intended effect.

Interestingly enough, the GPL only requires the party using the intellectual property (IP) to agree to the GPL terms when this IP is redistributed - there is really no legal need to establish whether or not a contract exists in the most common situation of free use without redistribution, whereas non-free IP requires much more extensive protection.

creative commons

Posted Jan 10, 2003 20:33 UTC (Fri) by mmutz (subscriber, #5642) [Link]

> The typical 2-4 line BSD or MIT "licenses" that we are familiar with
> are not contracts.

Wrong. They are. What's worse: They're even that sort of contracts that were only really allowed by UCITA: Anonymous mass-market contracts. I think the only thing that is not a contract under the copyright lawsystem is if you release your code into the public domain, ie. you disclaim all rights on it.

And that's not even possible in the EU and other countries that follow the "Droit d'auteur" tradition, so for Europeans any license is a contract (b/c we can't disclaim all rights).

Marc Mutz

creative commons

Posted Jan 14, 2003 10:25 UTC (Tue) by jneves (guest, #2859) [Link]

I'm still not sure if a copyright license is a contract or not.

As for Theo de Radt's concerns, I can only say that the tradition of "Droit d'Auteur" shared by, at least, France, Germany and Portugal doesn't allow for waiving certain rights provided by the law in any kind of contract. I haven't read the creative commons licenses, but if they are an attempt, at least in part, to put works on public domain sooner than these countries laws would permit, then they are, probably ineffective in most European Union. IANAL.

what is a license and a contract?

Posted Jan 16, 2003 19:51 UTC (Thu) by giraffedata (subscriber, #1954) [Link]

>I'm still not sure if a copyright license is a contract or not.

Let me clear it up. I am a contract lawyer.

No license is a contract. A license is a one-way thing.

But licenses are normally given as part of a contract. Under US contract law, I am not bound by the license I give you if I didn't get anything in return. They call that "lack of consideration."

When we say "BSD License," we really mean the standard contract that includes the BSD license. Read it again. In return for the license to use the software, the author gets a waiver from the user of liability for the author's negligence. Under tort law, absent a contract, you are responsible for damage that your negligence causes. If you negligently write and distribute software that causes my computer to be destroyed, you have to pay for the damage. But if I use your program under the BSD license, which you gave me as part of the BSD contract, then I agreed that if your negligence destroys my computer, _I_ will pay for the damage.

There's a variation on the BSD contract -- can't rememember if it's the original or not -- where the user also promises, in exchange for the license, to keep the author's name attached to the program.

Some people may be confused by the fact that the individual user doesn't actually negotiate with and interact with the author and sign an individual contract. What we have here is called a public contract. The author makes an offer to anyone who should read it. The user reads the offer and implicitly accepts it. That's a contract.

what is a license and a contract?

Posted Jan 22, 2003 6:54 UTC (Wed) by ghane (subscriber, #1805) [Link]

giraffedata said:

> Let me clear it up. I am a contract lawyer.

Which was so surprising, I read it three times to try locating the missing "not". ;-)

--
Sanjeev