(OT) - Major Blow to Copyleft Theory

Arnoud Engelfriet arnoud at engelfriet.net
Mon Aug 27 13:52:48 UTC 2007

John Cowan wrote:
> I understand why most common lawyers don't grasp this: they are so
> used to seeing a license ("You can publish my book") embedded in
> a contract ("You can publish my book if you pay me $5000") that the
> distinction seems over-subtle.  Pointing to licenses to trespass
> on land sometimes helps make the mental leap.

It's the "if" bit that causes the trouble, in my view. Is it
possible to add conditions onto the permission without straying
into contract land? 

"You can enter my home if you promise not to smoke inside."
"You can enter my home but only until 5PM today."
"You can enter my home if you pay me $25."
"You can enter my home and stay for a month if you pay $300."

Which one is a bare license and which a contract?

> I don't understand why civil lawyers have so much trouble.  Methods
> of contract formation aside, the unilateral/bilateral distinction
> should be exactly the same.  Copyright breach is a delict, but like
> lots of delicts, there can be a waiver either before or after the
> fact, and it can be conditional.  Where's the contract element?

As a civil lawyer, the main problem for me is that even the simplest
interaction between the parties creates a contract.

"Would you like a cookie?" - "Yes."
Offer, acceptance - contract. 

"It's raining, why don't you come in?" - "Great, thanks!"
Offer, acceptance - contract.

And so are all the four above.

I don't think I *need* the concept of a bare license in civil law.
If it's not a contract, then usually it's something like an easement.


Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/

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