[opensource-dev] TPV Policy makes Secondlife *content* incompatible with CC-SA licenses

Darmath darmath at tpg.com.au
Wed Feb 24 18:55:04 PST 2010

Brent Tubbs wrote:
> On Wed, Feb 24, 2010 at 5:53 PM, Jason Giglio <gigstaggart at gmail.com 
> <mailto:gigstaggart at 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.
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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


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