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Publishing Business & Licensing
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: 8919608" data-attributes="member: 42582"><p>My point is that the "automatic offer" is supposed to occur even if W(A) is unaware of it, not a participant in the relevant event, has retracted its own direct offer to licence, etc.</p><p></p><p>A contract in the common law is, at its core, a meeting of minds over a bargain. Where, here, is the licensor's mind?</p><p></p><p>The licence is meant to be neutral as between jurisdictions, so I'm not surprised that it doesn't use the language of common law private law. In civilian contract law, as I understand it, it is the intention to establish legal relations that is key, and not any notion of a bargain, and so the "automatic offer" may not be so puzzling.</p><p></p><p>But when I look around at the automatic offer for someone who is actually bargaining, the person whom I see is the licensee who has distributed the work such that it is received by the new party. And my generic term for a party who can bargain on behalf of another - in this case, a licensor - is <em>agent</em>.</p><p></p><p>Are you comfortable with an automatic offer flowing directly from a licensor that is not connected to any action or event in which they participate? To me it seems very artificial. That's why I find the idea of agency attractive, because at least that puts some boots on the ground - though I find it unattractive for other reasons (eg the potential fiduciary implications).</p><p></p><p>EDIT: [USER=463]@S'mon[/USER], I added a reply to you after you hit the XP button. It doesn't add much except to reiterate my uncertainty!</p></blockquote><p></p>
[QUOTE="pemerton, post: 8919608, member: 42582"] My point is that the "automatic offer" is supposed to occur even if W(A) is unaware of it, not a participant in the relevant event, has retracted its own direct offer to licence, etc. A contract in the common law is, at its core, a meeting of minds over a bargain. Where, here, is the licensor's mind? The licence is meant to be neutral as between jurisdictions, so I'm not surprised that it doesn't use the language of common law private law. In civilian contract law, as I understand it, it is the intention to establish legal relations that is key, and not any notion of a bargain, and so the "automatic offer" may not be so puzzling. But when I look around at the automatic offer for someone who is actually bargaining, the person whom I see is the licensee who has distributed the work such that it is received by the new party. And my generic term for a party who can bargain on behalf of another - in this case, a licensor - is [i]agent[/i]. Are you comfortable with an automatic offer flowing directly from a licensor that is not connected to any action or event in which they participate? To me it seems very artificial. That's why I find the idea of agency attractive, because at least that puts some boots on the ground - though I find it unattractive for other reasons (eg the potential fiduciary implications). EDIT: [USER=463]@S'mon[/USER], I added a reply to you after you hit the XP button. It doesn't add much except to reiterate my uncertainty! [/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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