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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: 8920605" data-attributes="member: 42582"><p>I'm particularly making the point that the offer is made freely, with no legal obligation to make it, and likewise no obligation to keep it on foot. It contrasts, for instance, with an option that is part of a contract.</p><p></p><p>A could contractually promise to B to make offers to C. If A revoked the offer, A would then be in breach of contract. The most obvious remedy would be damages to B for the loss they suffer as a result of C not having the opportunity to take up the object.</p><p></p><p>This is not what the CC licence is doing. It uses a notion of "automatic offer" that is triggered by any party receiving the licensed material, and which they accept by using that material. It does not seem to depend upon A actually offering at all, nor upon any meeting of minds over a bargain. I posted what I think is a good description of it, not too far upthread:</p><p></p><p></p><p></p><p>The basic puzzle is - how does a contractual agreement between me and you create the result that every time some third party reads the work I've licensed to you, they are able to (as it were) accept an offer from me "automatically", regardless of any actual intention on my part.</p><p></p><p>This is why it is being described as a servitude, like a restrictive covenant in the real estate context: what it actually seems that the contract tries to do is to add a new "attribute" to the licensed content, namely, the attribute of triggering a relationship of legal obligation and permission between me and the third party that is triggered by them engaging with my property, that I've licensed to you, in a certain way. It's a fiction to describe that as a contract between me and them.</p><p></p><p>Whether it is a legally effective fiction I don't know. I haven't yet found anyone - scholar or court - actually arguing that, or explaining how, it works. But my literature review hasn't been comprehensive - I just did a couple of keyword searches on Hein Online.</p></blockquote><p></p>
[QUOTE="pemerton, post: 8920605, member: 42582"] I'm particularly making the point that the offer is made freely, with no legal obligation to make it, and likewise no obligation to keep it on foot. It contrasts, for instance, with an option that is part of a contract. A could contractually promise to B to make offers to C. If A revoked the offer, A would then be in breach of contract. The most obvious remedy would be damages to B for the loss they suffer as a result of C not having the opportunity to take up the object. This is not what the CC licence is doing. It uses a notion of "automatic offer" that is triggered by any party receiving the licensed material, and which they accept by using that material. It does not seem to depend upon A actually offering at all, nor upon any meeting of minds over a bargain. I posted what I think is a good description of it, not too far upthread: The basic puzzle is - how does a contractual agreement between me and you create the result that every time some third party reads the work I've licensed to you, they are able to (as it were) accept an offer from me "automatically", regardless of any actual intention on my part. This is why it is being described as a servitude, like a restrictive covenant in the real estate context: what it actually seems that the contract tries to do is to add a new "attribute" to the licensed content, namely, the attribute of triggering a relationship of legal obligation and permission between me and the third party that is triggered by them engaging with my property, that I've licensed to you, in a certain way. It's a fiction to describe that as a contract between me and them. Whether it is a legally effective fiction I don't know. I haven't yet found anyone - scholar or court - actually arguing that, or explaining how, it works. But my literature review hasn't been comprehensive - I just did a couple of keyword searches on Hein Online. [/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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