On Sun, 25 Aug 2002, Martin L. Shoemaker wrote: > Knowing zilch about other legal codes (nearly zilch about ours), I can > think of two areas worth exploring:
Martin, I couldn't disagree with you more that this are areas worth exploring! :) Just because the discussion could be nearly endless and probably start going in circles. > * As I understand (from these lists, for the most part) the whole > "copyleft" and open licensing concept has yet to actually be tested in > any court. Is that understanding accurate? And if it ever does get > tested, what's the likelihood that it will get interpreted in entirely > contradictory fashions in different jurisdictions? Not sure if it's ever fully been tested, but if it has it'll likely have been in the "open source" area since that's where the concept has been at work the longest (at least in the form known as 'copyleft'). So I'll leave it to Ryan Dancey or someone else to provide specific examples. And I wouldn't be surprised if there aren't any examples - as I'd bet even the issues that came close to going to court ended up being settled. Theoretically, I expect that given it's current form (individually created by contract terms) 'copyleft' is likely to run into some different interpretations. Not just because of being interpreted differently in varying jurisdictions, but also because not all 'copyleft' contracts are the same. But even given the same 'copyleft' contract, say the OGL, I'd could see jurisdictions reaching disagreeing opinions on issues. For the OGL, the most obvious one is probably "clear designation" - perhaps where one court says a specific method is clear while another says it isn't (assuming such an issue would ever get before a court). An issue will then be reconciling those differences in later cases. > * I'm very unclear on a related issue of contract law: the way the whole > license is kind of "remote". The parties to the contract never sit down > and formally agree to anything. Rather, one makes an open invitation to > contract, and the other just acts in accordance with the invitation; and > voila! We have a contract. No one sat down and agreed, no one signed > anything, and one party to the agreement may never even be aware that > the other party has agreed to anything. This seems just a little > nebulous to me, even though it's a core mechanism for open licensing. > Are there precedents that support such open-ended contracts? And what's > the likelihood that such open-ended contracts are considered equally > binding in different jurisdictions? I thought Ryan covered this (or something close to it) back in the early days. I don't remember the details, but suffice it to say that yes, this is perfectly acceptable. It's also a large reason why the contrat is written the way it is - since the earlier people in the chain have no contact (perhaps even knowledge) of people later in the chain the contract spells out things in the way that both parties have actually agreed to be at both positions in the chain. When a party uses the OGL they agree as to how they will re-use other peoples OGC as well as agreeing to permit others re-use of their OGC. As for the binding in different jurisdictions question, I think that'd be covered by the failure to comply clause. If an open license isn't binding in the jurisdition, the OGL simply doesn't apply there and can't be used. However, I can't think of why any jurisdition would have a problem with such a contract. There's clearly offer/acceptance and no one is being forced to agree to terms they don't wish to in order to do something they could otherwise do. [yes, you may have to agree to some terms you don't like, but your being allowed to use copyrighted material you otherwise couldn't.] alec _______________________________________________ Ogf-l mailing list [EMAIL PROTECTED] http://mail.opengamingfoundation.org/mailman/listinfo/ogf-l
