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Re: Contracts and licenses



Brian Thomas Sniffen wrote:
> Arnoud Engelfriet <galactus@stack.nl> writes:
> > My response: I do not accept the license grant. Therefore, I 
> > have rejected your offer and so I am not bound to do anything 
> > in return. 
> 
> So if you say you want to give me your watch, and I say I want it, can
> you not accept my desire, and so reject my offer to receive your
> watch?

No, since your saying "I want it" is an acceptance of my offer.
If you had said "I want it, but only if you give me your ring as
well", then you would have made a counter-offer. That cancels
my offer.

> The more I learn about this system, the more I think the word
> "contract" or even "agreement" is a terrible translation, because they
> both denote bilateral action.  "Obligation" seems to be appropriately
> unilateral.

Perhaps, but to confuse things, it's certainly possible to have
obligations for both parties arising out of such an agreement.
But I guess then you would call it a contract :)

And to confuse things more, over here we say that obligations
are a consequence of an "agreement". In the above example, the
"agreement" gives me the obligation to give you the watch.

> In any case, in the US a contract has a few requirements inconsistent
> with a free license:
> 
> * A meeting of minds: the license issuer need never receive
>   communication from the licensee, so how can there be meeting of the
>   minds?

I can see this is an issue. It's probably an issue over here
as well. The parties need to have an understanding in order to
agree. There's of course implicit acceptance (by entering my
house, you agree to my house rules).

> * A consideration: if the license document specifies consideration to
>   the licensor, the license can't be free.

I think this is the crux of the matter. But -just thinking
aloud here- what if the consideration is "you promise to
distribute your derivative works only under these same terms"?
Something like that anyway. It certainly would be a valuable
return to the licensor.

Arnoud

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



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