Re: Questions about legal theory behind (L)GPL
On Thu, 6 Jan 2005 23:55:25 -0800, Michael K. Edwards
<m.k.edwards@gmail.com> wrote:
> I've cited cases about implied licenses under both the 1909 and 1976
> Copyright Acts (in the US). As far as I can tell, the only mechanism
> for conveying such an implied license is an implied contract, and when
> there is a written agreement involved, a court will only find an
> implied license as an implied provision in that agreement. As I wrote
> before, if anyone can cite legal precedent to the contrary (I don't
> claim to have made more than the most cursory search of law outside
> the US, and IANAL in any jurisdiction), now would be a good time to
> mention it.
As for Belgian jurisdiction (which would be quite similar to other
European continental systems) according to the authorship act (I'm
not using copyright, Belgium is a so called 'droit d'auteur' system):
Economic authorship rights can be transferred, either in license or as
a whole (moral rights cannot be transferred). Those economic rights
are considered as an intangible good, and transfer happens according
to civil law code as any other good. Some differences though: to
enforce rights from the author (which would be the licensor), the
contract must be written; interpretation is restrictive, and to the
advantage of the author; the author cannot transfer all his rights,
namely not those on techniques of exploitation that do not exist yet;
the exploitation technique, scope, duration and renumeration of the
transfer must be explicitly mentioned; fair economic customs and
usages must be followed; transfer of economic rights on future works
is limited. Otherwise civil code applies. (this is the authorship act
- case precedents do not have force of law)
On to implied licenses then. Because of the many restrictions - the
written contract, the mentioning of duration and so on - little room
is left for any implied license terms (an implied license is out of
the question). If there are any implied terms, those should be within
reason, and part of fair economic trade usages. These economic trade
usages are not many - but a long term relationship between the parties
can convey trade usages between those parties.
As to the infringement. There is an important case (here we do have
some case precedent law) of our supreme court that says that one
cannot claim damages outside a contract if there is a contract (Alice
has a transport of goods contract with Bob, Bob has a contract with
Charlie to move the goods from the shore to the ship. Charlie damages
the goods. Alice cannot sue Bob, because he has lawfully exonerated
himself from fault from third parties. Alice cannot sue Charlie,
because she has a contractual relation on the goods with Bob). Thus
any infringement procedure must come from the license contract itself,
and every term that is infringed must be part of that contract. Thus
even less room for implied terms (they cannot be based on the general
fault tort - a bit like the tort of negligence but broader).
So conclusively there are little odds an implied license, or implied
terms of the license, will ever hold legal force in Belgian
jurisdiction. It is more probable that explicit terms will be adjusted
to conform to fair trade usages - or the whole contract made void.
I believe this is what you needed to know, if there are further
questions just shoot.
Kind regards
tist
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