Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

FrogReaver

As long as i get to be the frog
I don't think anyone is going to change basic principles of contract law - on which the effectiveness of contractual licensing depends - in order to "save" the CC. (I put "save" in inverted commas because it's not clear how you much you can change the law of offer and acceptance while having the CC licence actually work - eg it depends on the law of unilateral offers to come into effect between the licensor and a party.)
I understand. I'd just add that carving out an exception is hardly the same thing as changing the basic principles of contract law. But point taken.

You mentioned earlier gratituous unilateral offer. Do things change if it's not a gratituous unilateral offer. Howso? And would the future offer be considered gratituous or unilateral seeing as it arose from an agreed upon contract?

Rather, the CC provision will be given effect by identifying the legal relationship or mechanism that it gives effect to.
I see. What if there isn't one?
 

log in or register to remove this ad

FrogReaver

As long as i get to be the frog
I found this article that footnotes the provision, but takes it at face value without analysis:
The Age of Remix and Copyright Law Reform
Law, Innovation and Technology, Vol. 12, Issue 1 (2020), pp. 113-155
Li, Yahong
FYI, it seems to be behind a paywall - likely free to students with login credentials but not others.
 



pemerton

Legend
I've been reading through more articles.

This article discusses (in a fn) whether GPL is a contract or a unilateral licence. The GPL version of the "licence to all recipients" provision doesn't use the word "offer". Rather, it says the recipient "automatically receives a licence". Brian W. Carver, Share and Share Alike: Understanding and Enforcing Open Source and Free Software Licenses, 20 BERKELEY TECH. L.J. 443 (2005).

This article quotes the GPL provision and then says (p 633) "So if all goes as provided in the GPL, everyone who receives a copy or modified version of the software also receives a license and her use of the software is subject to the license terms" - but without actually confirming whether or not all will go as is provided for. Molly Shaffer Van Houweling, Author Autonomy and Atomism in Copyright Law, 96 VA. L. REV. 549 (2010).

This paper is excellent in my view formed from a quick look through it - Molly Shaffer Van Houweling, The New Servitudes, 96 GEO. L.J. 885 (2008) - and discusses these issues directly. It articulates some of the reasons for my uncertainties - ie that these sorts of "automatic offers" are really a type of property right rather than a contractual matter. But I don't think it addresses the circumstance where the offeror resiles from the offer - its focus, rather, is on how the "automatic offer" makes the recipient bound by the same terms as the licensor imposed on the intermediate licensee.

Finally, this article actually discusses the exact issue: Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of
Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. Mason L. REV. 271 (2007).

The following is from pp 313-4 (footnotes omitted):

Professor Merges argues that "for content to stay in the semicommons envisioned by the Creative Commons device, there must be an unbroken chain of privity of contract between each successive user of the content." The restriction that any reuse or distribution of the work contain the license, or a link to the license, is an attempt to bring all users who might encounter a copy of the work and subsequently use the work into privity with the copyright owner. The Creative Commons licenses also attempt to assure privity through clauses in section eight of the licenses, which state that each time a copy of the work or a derivative work is distributed, publicly performed, or digitally performed, the copyright owner "offers to the recipient a license to the Work on the same terms and conditions as . . . under this license." The use of a license attached to copies of a copyrighted work and the requirement that users reproduce that license on any subsequent copies as a means of trying to assure privity of contract is a strange and yet ubiquitous phenomenon in recent decades.

The practice of attaching licenses to each copy might be more accurately characterized as creating equitable servitudes instead of contract
rights. Are these really contract rights that are being created, or are they more accurately characterized as equitable servitudes? While equitable servitudes are applicable to real property, the possibility of creating such servitudes on chattels was presented almost a century ago but never fully embraced. Perhaps it is appropriate to say that the Creative Commons licenses attempt to create an equitable servitude that "runs with" the intangible work embodied in the tangible "chattel" copy. Characterizing these license conditions as equitable servitudes may, in fact, be a more accurate characterization.​

The previous article - the one that I described as "excellent" - is a critique of the "equitable servitudes" analysis as being legally satisfactory.

At this point I'm happy to say that the proper analysis is not settled - but I feel somewhat vindicated that there is published work that is able to clearly articulate the uncertainty that I intuitively felt.

EDIT: I missed this one - Eli Greenbaum, The Non-Discrimination Principle in Open Source Licensing, 37 CARDOZO L. REV. 1297 (2016).

From pp 1341-2 (footnotes omitted):

under many open source licenses, each distribution of the licensed work results in a new license grant. The Creative Commons licenses, for example, provide that "[e]very recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights." Similarly, the GPL provides that "[e]ach time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License." In other words, by releasing material under these licenses into the wild, the copyright holder begins making a series of license grants that she is powerless to stop. Each subsequent recipient of the material benefits from a new license . . .​

But there is no explanation here of why the licensor is powerless. So it doesn't erode my feeling of vindication.
 
Last edited:

tomBitonti

Adventurer
As you know, I think the best view is that the OGL does work like that.

I actually find it clearer, in legal terms, than the CC licence because I find the "automatic offer that is not a sub-licence" a bit tricky to fit into a legal framework. I suspect that, at least in part, this may be a reflection of the intended jurisdiction-neutral functioning of the licence. As you can see, I am grasping at agency as one way of fleshing it out using the legal devices at my disposal.
I’m still confused by “sub-license”. Presumably, “sub” is at least descriptive, regardless of the specific legal meaning.

To my layman’s view:

The OGL 1.0a is both an agreement to offer a license, a mechanism to grant licenses, and, by that mechanism, which is to copy the terms of the OGL, an actual license. Note that this means the OGL is never itself used as a license. Only the licenses which are made by copying the license terms are actual licenses. The original OGL is only ever used as a license agreement, which I take as a contract to issue the copy licenses.

Then. ignoring for the moment the use of the term “sub-license”, would the actual licenses which are created be normally considered “sub-licenses”? Is “sub-license” used merely to mean the copied licenses? That is, regardless of any usual legal meaning of “sublicense”? That would make the CC-BY text a correction to the original text, removing the improper use of “sublicense”.
TomB
 

pemerton

Legend
I’m still confused by “sub-license”. Presumably, “sub” is at least descriptive, regardless of the specific legal meaning.

To my layman’s view:

The OGL 1.0a is both an agreement to offer a license, a mechanism to grant licenses, and, by that mechanism, which is to copy the terms of the OGL, an actual license. Note that this means the OGL is never itself used as a license. Only the licenses which are made by copying the license terms are actual licenses. The original OGL is only ever used as a license agreement, which I take as a contract to issue the copy licenses.

Then. ignoring for the moment the use of the term “sub-license”, would the actual licenses which are created be normally considered “sub-licenses”? Is “sub-license” used merely to mean the copied licenses? That is, regardless of any usual legal meaning of “sublicense”? That would make the CC-BY text a correction to the original text, removing the improper use of “sublicense”.
TomB
I don't understand much of your post.

A sub-licence is a licence in respect of some property that is created by an act of a licensee, rather than the property owner. It depends on the sub-licensor (who is the licensee of the head licensor) enjoying such a power as part of the terms of their licence. In the OGL v 1.0/1.0a, that power is conferred as part of the permission to Use, because the definition of Using includes licensing.
 

tomBitonti

Adventurer
I don't understand much of your post.

A sub-licence is a licence in respect of some property that is created by an act of a licensee, rather than the property owner. It depends on the sub-licensor (who is the licensee of the head licensor) enjoying such a power as part of the terms of their licence. In the OGL v 1.0/1.0a, that power is conferred as part of the permission to Use, because the definition of Using includes licensing.
Right. Ignore all of that. Presume that the usage of the term “sub-license” in the OGL is erroneous. Consider the licenses which are created by copying the terms of the OGL. Would those normally be considered sub-licenses?
TomB
 

pemerton

Legend
Right. Ignore all of that. Presume that the usage of the term “sub-license” in the OGL is erroneous.
Why would I presume that. You are asking me to rewrite the OGL in my head without telling me how you want it re-written.

Consider the licenses which are created by copying the terms of the OGL. Would those normally be considered sub-licenses?
I think by "licenses which are created by copying the terms of the OGL" you mean "contractual licences the terms of which are as set out in the text of the OGL".

Those licences might be (head) licences, if issued by the owner of the licensed IP. Or they might be sub-licences, if issued by a licensee of the IP owner. The network of contractual licences that the OGL is intended to establish, creating an "ecology" of OGC, contains both these things.
 

S'mon

Legend
Alas. Though you could argue that open licenses are an attempt to return to how things were before the widespread adoption of copyright laws and the Berne Convention. In the grand scheme of history, overly restrictive Intellectual Property laws are innovations, not the status quo.

In the time between the Glorious Revolution 1688/89, and the rise of the Statute of Anne 1709/10, there lay an Age Undreamed Of...

(sorry, copyright/Conan joke)
 

Remove ads

Top