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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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<blockquote data-quote="pemerton" data-source="post: 8920559" data-attributes="member: 42582"><p>Sure, but that mental state is just a gratuitous promise and so not binding. Whereas the goal of the CC is to make the "automatic offers" immune to changes of mind.</p><p></p><p>I am starting to think the academics who say it is really meant to work as a somewhat novel quasi-proprietary incident of the licensed IP ("equitable servitude" is the technical term) are correct - because property rights are good against all the world (unlike contractual ones) and can bind downstream without the need for a new bargain. But for that very reason - ie the burden they pose on freedom of contract and freedom to deal with one's property as one wishes - they are suspect.</p><p></p><p>Eg you can imagine, say, Mercedes trying to impose a rule that when you buy the car from the dealer, you are required not to change or damage the symbols on it. But the default common law response is "It's your car, you can do what you like with it, and the dealers agreement with Mercedes doesn't bind you!"</p><p></p><p></p><p>As I said, this doesn't change the fact that it's a gratuitous offer that can be withdrawn at will. Just like tearing down all the posters where you offer a reward for your lost cat - which you can do even if no one has found your cat yet!</p><p></p><p></p><p>I'm not sure what sorts of encumbrances you have in mind - eg "floating" security rights granted over some bundle of assets that includes IP rights, or just non-revocable licensing agreements (perhaps exclusive ones?)</p><p></p><p>Some of these will be proprietary in character (eg charges). The existing licences granted pursuant to the OGL or CC are not revocable, and so might be considered encumbrances, in the sense of unavoidable obligations and limits attached to the IP in question. But what's interesting in the context of this discussion are the features of the OGL and CC licence that mean that a change of mind by the licensor in respect of making new offers doesn't affect the capacity of an existing licensee to engage in conduct that creates new licences.</p></blockquote><p></p>
[QUOTE="pemerton, post: 8920559, member: 42582"] Sure, but that mental state is just a gratuitous promise and so not binding. Whereas the goal of the CC is to make the "automatic offers" immune to changes of mind. I am starting to think the academics who say it is really meant to work as a somewhat novel quasi-proprietary incident of the licensed IP ("equitable servitude" is the technical term) are correct - because property rights are good against all the world (unlike contractual ones) and can bind downstream without the need for a new bargain. But for that very reason - ie the burden they pose on freedom of contract and freedom to deal with one's property as one wishes - they are suspect. Eg you can imagine, say, Mercedes trying to impose a rule that when you buy the car from the dealer, you are required not to change or damage the symbols on it. But the default common law response is "It's your car, you can do what you like with it, and the dealers agreement with Mercedes doesn't bind you!" As I said, this doesn't change the fact that it's a gratuitous offer that can be withdrawn at will. Just like tearing down all the posters where you offer a reward for your lost cat - which you can do even if no one has found your cat yet! I'm not sure what sorts of encumbrances you have in mind - eg "floating" security rights granted over some bundle of assets that includes IP rights, or just non-revocable licensing agreements (perhaps exclusive ones?) Some of these will be proprietary in character (eg charges). The existing licences granted pursuant to the OGL or CC are not revocable, and so might be considered encumbrances, in the sense of unavoidable obligations and limits attached to the IP in question. But what's interesting in the context of this discussion are the features of the OGL and CC licence that mean that a change of mind by the licensor in respect of making new offers doesn't affect the capacity of an existing licensee to engage in conduct that creates new licences. [/QUOTE]
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Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.
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