(OT) - Major Blow to Copyleft Theory

John Cowan cowan at ccil.org
Mon Aug 27 17:45:40 UTC 2007

Arnoud Engelfriet scripsit:

> Well, you can terminate a contract with reasonable notice.

But when is the contract actually formed?

> Initially it would be a contract. You offer entrance, I accept
> the offer so I can enter. 

Clear enough.  But in the case of the tour bus, you are suggesting
that the acceptance happens *before* the tourists enter the building.
That seems a terrible position.  If you see a photograph of the sign on
Flickr, surely you are not entitled to rely on it: you have to actually
go there and attempt entry, and if the sign now says "Closed today at
1200" then you would be a trespasser if you tried to enter, no?

I concede that I can't arbitrarily kick people out at 1200 because I have
changed the sign (that is, I am bound by my contract with those already
inside), but I think anyone who is outside and has not yet seen the old
sign has no contract with me.

> An easement could come into play when you've permitted people to
> enter the grounds for a long time (I believe something like 20+ years
> here in the Netherlands). 

The general flavor is the same in the common law system, I think because
prescription was actually one of the few pieces of civil law that was
more or less directly copied in.  In any case, it is everywhere in the
common-law domain a creature of statute, I think.

> If you have a camera present when you cordon off your pavement,
> that neatly solves this problem.

Indeed it does.  Newspapers and other media also often cover such events,
particularly when non-public streets (such as Park Avenue between 42nd
and 47th Streets in Manhattan) are affected.

But back to the normal case, where people are crossing the private
property freely:  Under what legal theory are they entitled to do so?
If they are mere tolerated trespassers, they could be arbitrarily ejected
and sued, but that doesn't seem to be the law: even though there is no
easement, and they are not actually invited, there is a license that
permits the crossing, a license which is not the subject of any actual
contract.  (As a practical matter, the landowner has certain duties
of care toward a licensee, such as the duty to warn of known dangers,
that don't extend to trespassers.)

The experiences of the past show                John Cowan
that there has always been a discrepancy        cowan at ccil.org
between plans and performance.                  http://www.ccil.org/~cowan
        --Emperor Hirohito, August 1945

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