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

[pemerton]

I think my disconnect here is I don't understand why it cannot simply be a contractual mechanism. (I tend to think of contractual as legal but I think for you there is a distinction).

I don't know what you mean by "simply be[ing] a contractual mechanism". What sort of mechanism?

I don't recall previously having come across the notion of an "automatic offer" that issues from a party not based on anything they do, but rather based on some other licensed party's dealing with their property (such that a third party receives it).

That's not to say it can't be done, nor that it can't be done in some way other than agency. At the moment, I'm just not seeing what that way is.

 

[rpd9803]

With the OGL, WotC is not obliged to offer in perpetuity, but every licensee is obliged to offer to license the OGC by way of sub-license, and they make the offer by using the OGC and thus becoming bound by the terms of the OGL.

The CC-BY takes out the sub-licensing device, and tries to have it that every downstream transmission of the material generates an offer directly from the licensor (ie an "automatic offer").

Thanks for the clarity. It does seem like it's a formidable legal challenge to come up with an mechanism for creating an irrevokable (except for breach), perpetual license of a creative work between the IP-rights owner and everyone in the future.

 

[rpd9803]

There you go again with the whitewash.

But where is the lie? Platitudes aren't arguments.

 

[FrogReaver]

But where is the lie? Platitudes aren't arguments.

Omission.

 

[FrogReaver]

I don't know what you mean by "simply be[ing] a contractual mechanism". What sort of mechanism?

I don't know how you don't know what I mean. Like I'm stumped. I feel like being asked what is 'blue'?

I don't recall previously having come across the notion of an "automatic offer" that issues from a party not based on anything they do, but rather based on some other licensed party's dealing with their property (such that a third party receives it).

I would bet it doesn't exist anywhere else.

That's not to say it can't be done, nor that it can't be done in some way other than agency. At the moment, I'm just not seeing what that way is.

Okay let me rephrase, Why is agreement in the contract not enough of a mechanism to make automatic offer be the case?

 

[pemerton]

Thanks for the clarity. It does seem like it's a formidable legal challenge to come up with an mechanism for creating an irrevokable (except for breach), perpetual license of a creative work between the IP-rights owner and everyone in the future.

I think it is, yes, because of the basic principle of freedom of contract and its corollary, that a gratuitous and unilateral promise to let others use one's property is not binding.

The most obvious solution in my view would be to create a statutory framework in which (for instance) a certain deliberate form of words was sufficient to create an offer to licence the IP that cannot be withdrawn. But presumably I'm not the first person to think of that possibility, and so there must be at least some arguments against its feasibility or desirability.

 

[pemerton]

Why is agreement in the contract not enough of a mechanism to make automatic offer be the case?

You can contract to sell me the White House. When the times comes for settlement, though, you'll be in breach, because you don't own the White House and so can't pass it on to me. And in the period between contracting and settlement, your promise won't give me any rights over the White House, again because you have no property in it that you can deal with.

You can't contract to sell yourself into slavery, either, as that is not a legal relationship recognised in Australian or American law. (In the case of the US, its an express constitutional principle, set out in the 13th Amendment.)

An offer isn't a "black box" or a legal fiction. It's an actual legal state of affairs, in which one party has rendered themselves liable to become contractually bound by another party accepting their offer, because their minds meet over the bargain.

Anyway, I found this case that engages with the relevant CC provision: Great Minds v. FedEx Office & Print Servs., Inc., 886 F.3d 91 | Casetext Search + Citator

But it doesn't analyse it, because the plaintiff was relying on the effectiveness of the automatic offer to try and hold FedEx accountable for breaching the terms of the licence it had agreed to. Whereas the court found that FedEx was simply an agent for the actual licensee, being paid by that actual licensee to print the licensed material without itself having become an independent licensee. And there was no suggestion that the licensor wished to cease making offers.

 

[FrogReaver]

@pemerton

I think I see our disconnect.

You are holding the 'basic principle of freedom of contract and its corollary, that a gratuitous and unilateral promise to let others use one's property is not binding' to be absolute.

My initial thought is that such a principle need not be absolute, that as with most things in the law there are likely exceptions to it (or at least wiggle room in defining the terms).

As such, I find it hard to believe that the courts would potentially undo 2 decades worth of creative commons licenses in order to keep that principle as an absolute. I think most likely they would carve this out as an exception to that absolute principle. Though I think this means we are on shakier legal ground than we would like - which isn't unsurprising since open licenses are a relatively new invention.

 

[Aspirinsmurf]

Though I think this means we are on shakier legal ground than we would like - which isn't unsurprising since open licenses are a relatively new invention.

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.

 

[pemerton]

I find it hard to believe that the courts would potentially undo 2 decades worth of creative commons licenses in order to keep that principle as an absolute. I think most likely they would carve this out as an exception to that absolute principle.

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.)

Rather, the CC provision will be given effect by identifying the legal relationship or mechanism that it gives effect to.

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