Belgian Court recognises CC licences

Professor Séverine Dussollier of the University of Namur has emailed us to let us know about a new case involving Creative Commons in Belgium, and has kindly agreed to allow me to repeat her short analysis of the case here. She writes:

A Belgian court today has applied the CC license to a copyright infringement suit. I attach the judgement (in French). The facts were simple, a music band had posted on its website some music under a CC license Non commercial – No derivative works. A theater adapted the music to make an advertisement for their theatrical season. The ad was broadcast on the national radio several times (with no attribution).
The band refused the damages that the theater proposed (1500 €) and decided to sue for copyright infringement.

The court acknowledged the licensing under the CC license and the fact that the theater did not respect any of the license features:

  • no attribution was made
  • the music was slightly modified for the ad
  • the advertisement, even for a theater was a commercial use prohibited by the license.

The theater defended itself by arguing a mistake (the court said that as a professional of the cultural sector, they should pay more attention to licensing conditions) and its good faith (traditionally not accepted in Belgian as a defense to copyright infringement).
But the court denied to the band the amount of damages they reclaimed (around 10.000 €- and only granted 4500€ (i.e. 1500€ for each attribute of the license that was not respected), considering that it was paradoxical to license works under a CC license and a non-commercial ideology but demanding a price that would be higher than commercial conditions…

This is an extremely interesting ruling for various reasons. Firstly, it helps to eliminate the typical FUD that tries to undermine Creative Commons as licences that are not valid because they lack case law. Secondly, it will also serve to answer another common piece of FUD, which tries to imply that CC licences are American-centric documents that are not valid and/or enforceable in Civil Law jurisdictions. Finally, it is interesting to see how a court may consider the fact that a licence is non-commercial when calculating damages, a solution which I tend to agree with.

The full text of the decision is here (in French). Here is also the Scribd version.

96 thoughts on “Belgian Court recognises CC licences

  1. so

    the penalty was worth

    CONCLUSION:

    Is better to pay the fine

    How much money did the theater earn? 200,000E? 300,000E?, count just the places and the quantity of people that is going , plus the number of days or the performance, multiply for the cost of the entrance (50 Euros average)…

    the court did take this into consideration…

    a monthly salary for any person in administration is about 1500Euros + taxes (company real cost is about 2300Euros), so is the same money than employing 2 secretaries for one month but with the advantage of not having problem with the social security and syndicates, GREAT IDEA, IS ALWAYS BETTER TO PAY THE FINE

  2. You claim: "Firstly, it helps to eliminate the typical FUD that tries to undermine Creative Commons as licences that are not valid because they lack case law. Secondly, it will also serve to answer another common piece of FUD, which tries to imply that CC licences are American-centric documents that are not valid and/or enforceable in Civil Law jurisdictions."

    I think that the opposite is true. The court has essentially confirmed the FUD: The CC-BY-NC-ND cannot be enforced.

    The goal of the CC-BY-NC-ND is to prohibit commercial use and derivative works and to enforce proper attribution. The idea is that if these conditions are violated, the license becomes null and void (see definition 1.g http://creativecommons.org/licenses/by-nc-nd/3.0/… and standard copyright law comes into effect, which then allows to sue for compensation claims. Then someone infringing these conditions faces the threat of significant monetary or other compensation claims, which are higher than standard licensing fees. That is why the authors asked for 10.000 EUR.

    But the court rejected this. The court said de facto: The CC license's conditions are invalid and anyone is allowed to use the work without attribution or commercially and with modifications, as long as he pays the usual market price for licenses that allow this.

    But this means anyone can simply completely ignore the BY-NC-ND-conditions instead of buying a commercial license. The worst thing that can happen is that rights holder of the CC licensed work asks for the fee that he would have had to pay anyway in the other case. Or, put differently: Ignoring BY-NC-ND conditions never gives you a disadvantage.

    What is paradoxical is the court's argument that "it was paradoxical to license works under a CC license and a non-commercial ideology but demanding a price that would be higher than commercial conditions".

    • I am very curious as how you think this means that the licence is invalid, when the court ruling clearly states the following (p3): "The court refers in particular to doctrinal comment by Mr. Ph. Laurent and confirms that the Creative Commons license is valid and applicable to this case." This is unambiguous recognition of the licence.

      The licence was applied and therefore is enforceable. The court made a decision about the amount of damages awarded, a decision with which is separate from the award of damages. If the licence was invalid and inapplicable, then there would have not been any damages. The fact that the court disagreed with the amount of damages asked for by the claimant does in no way invalidate the effectiveness of the licence.

      • It is true that the court says "… confirms that the Creative Commons license is valid and applicable to this case", but it then goes on to de facto judge the exact opposite. What is relevant is what the court decision comes down to, not bogus commitment of the court to the CC-BY-NC-ND license, which is in gross conflict with the verdict. The court doesn't walk its talk.

        If the license were actually applied, it wouldn't have been relevant what conditions or how many of them were violated in the decision about the amount of damages awarded. Because the license in effect says that it becomes null and void as a whole if any of the conditions are violated. That is, the license is completely irrelevant for the damages awarded if it is valid. The court did not agree with this. It looked at what the license allowed and then billed them only for the exactly the prohibited actions, with an amount that corresponds to usual fees. Thus, the court de facto ruled that the license is invalid; that commercial use, derivatives and omission of attribution IS permitted, albeit for a fee that is common for such permission.

        The argument is very easy:

        The license says commercial use and derivative works are prohibited and attribution is required.

        The court says commercial use and derivative works are permitted and attribution is not required, as long as fees common for such use are paid.

        Thus, the court has in effect ruled the license to be invalid.

        If the licence was valid and applicable, there would have been real damages, as requested by the authors, not merely fees common for commercial use.

        • I think that you need to understand the legal language involved. To say that a contract or licence is invalid has very specific connotations in law. I do not know your background, but I am assuming from what you are saying that you do not know the meaning of a legal document being invalid. An invalid document has no legal effect. In other words, an invalid licence could not have produced damages. For legal purposes, the licence is valid and effective, the court recognises this and applied it.

          The court applied the terms of the licence, found a breach of the licence, and awarded damages. This is the very essence of what validity means.

          The court made an interpretation of the amount of damages awarded, but it DID award damages, therefore the licence is valid. I cannot stress this point enough. You seem to imply that if the court did not follow your own interpretation of the licence, then the licence is invalid.

          The court made a particular interpretation of the legal document in front of it, that is their job, but they did not declare the licence invalid. The case is interesting on its own merit because of the interpretation given to the licence, and other courts may interpret the licences differently, but the licence is valid and effective.

  3. You are quarreling about words, and not about the essence of what I said. My statements were about the legal judgement, not about legal language.

    – Do we agree that, had the theater downloaded the music from the band's website and this website had NOT containted any (CC or other) license at all, then the court would not have used its (IMO bogus) "paradox" argument and would have granted, based on the effects of standard copyright law, compensation of 10.000, or at least significantly higher than the fee of 4.500?

    – Do we agree that the license says (as an effect of definition 1.g) that if the license is violated, all permissions become null and void, so standard copyright law comes into effect?

    – Do we agree that the court ruled, in conflict with definition 1.g, that not all permissions become null and void, that no compensation needs to be paid, but only the fee, usual on the market, for the uses prohibited by the license?

    – Do we agree that a license is de facto deemed (at least in part) invalid by the court, if the court dismisses at least one of its intended effects?

    – Then, do we agree on the conclusion that this specific court in this specific case deemed the license (at least in part) invalid, because it dismissed the intended effect of making the license null and void?

    Do we agree on all of these?

    If we don't, do you at least *understand* the point I am trying to make?

    • "You are quarreling about words, and not about the essence of what I said. My statements were about the legal judgement, not about legal language."

      This is not a simple quarrel about words. In law, words are very important, when you state that a legal document is invalid, you are making a clear and unambiguous legal statement about the licence, and in this case it is clearly wrong. This is a legal discussion, so you have to know and use the language adequately. What you are trying to say is that the court declared the licence valid (which it did), but that in your opinion it misapplied the terms and conditions of the licence. This is a very important distinction.

      "- Do we agree that, had the theater downloaded the music from the band’s website and this website had NOT containted any (CC or other) license at all, then the court would not have used its (IMO bogus) “paradox” argument and would have granted, based on the effects of standard copyright law, compensation of 10.000, or at least significantly higher than the fee of 4.500?"

      No, we do not know what the court would have awarded in that case. This is I think where you are also misunderstanding the law with regards to the award of damages. My iunderstanding of the Belgian system is that it has fixed damages, but that these can be changed and determined by the court on a case by case basis. So, if the songs had been available for free under "All Rights Reserved" licence on the band's website, the court could have reached the same decision of damages because the band was not selling the songs. We simply do not know.

      "- Do we agree that the license says (as an effect of definition 1.g) that if the license is violated, all permissions become null and void, so standard copyright law comes into effect?"

      Yes and no. Most copyright licences contain such clauses, but courts can interpret the clause depending on circumstances.

      "- Do we agree that the court ruled, in conflict with definition 1.g, that not all permissions become null and void, that no compensation needs to be paid, but only the fee, usual on the market, for the uses prohibited by the license?"

      No, here you are trying to apply a mechanistic intertpretation of the law and the licence, this is not how copyright licensing operates, and therefore you are missing the point. Attribution must always remain because Belgium is a Civil Law system, and therefore moral rights cannot be waived, this is why the court produced its decision in the way it did. Courts are perfectly capable of adjusting licensing terms and interpreting licences in accordance to national law.

      "- Do we agree that a license is de facto deemed (at least in part) invalid by the court, if the court dismisses at least one of its intended effects?"

      No, the licence was applied in full (which means that it is valid), but it was interpreted by the court to accomodate the facts of the case and to adjust it to national law.

      "- Then, do we agree on the conclusion that this specific court in this specific case deemed the license (at least in part) invalid, because it dismissed the intended effect of making the license null and void? Do we agree on all of these?""

      No, that is your conclusion based on your erroneous interpretation of licensing and damages.

      "If we don’t, do you at least *understand* the point I am trying to make?"

      I understand the point, I just think it's wrong.

      • This is not a simple quarrel about words. In law, words are very important, when you state that a legal document is invalid, you are making a clear and unambiguous legal statement about the licence, and in this case it is clearly wrong. This is a legal discussion, so you have to know and use the language adequately

        Words are never important, neither in legal discussions nor anywhere else. I am trying to use a language that is understandable and clear and says what things come down to, not sophisticated legal language that serves no other purpose than to make things hard to understand for oursiders. This is a problem in many other sciences, too.

        What you are trying to say is that the court declared the licence valid (which it did), but that in your opinion it misapplied the terms and conditions of the licence. This is a very important distinction.

        No, it is not. You have to see that definitions are arbitrary and that even in legal matters words are used in all kinds of different meanings. Some use "invalid" to say that the conditions of the license could not be enforced; others use it so say that standard copyright came into effect instead of the license and conditions even stronger than the license were enforced. You are quarreling about words; please start discussing the essence of things.

        Yes and no. Most copyright licences contain such clauses, but courts can interpret the clause depending on circumstances. … My iunderstanding of the Belgian system is that it has fixed damages, but that these can be changed and determined by the court on a case by case basis.

        I can argue for anything with such statements. What you are saying is that courts can essentially ignore the license and judge whatever they want. But that is exaclty what I say: De facto, the court deemed the license invalid.

        No, we do not know what the court would have awarded in that case.

        You are claiming that there has never been a case in Belgian law where works were used without any permission or license at all that you can look at and see the result. Such a claim is absurd.

        So, if the songs had been available for free under "All Rights Reserved" licence on the band’s website, the court could have reached the same decision of damages because the band was not selling the songs. We simply do not know.

        You miss my point entirely. If you think it matters if the song is available for download for free somewhere, then simply take the situation in which the songs were sold in store instead, and never downloadable from any website. The point is that the clause saying all rights are terminated on violation of the CC-BY-NC-ND is de facto deemed as invalid here, because the court would obviously not grant the same amount of damages as in a case where no license was used.

        No, here you are trying to apply a mechanistic intertpretation of the law and the licence, this is not how copyright licensing operates

        A rational interpretation, certainly not a mechanistic one. But you are essentially saying that there is no rationality in law and things can be this way or that way; they are arbitrary. If you question the rationality of the legal system, then we can stop arguing, because anything can be the outcome and it doesn't depend on the law and the license in any rational way.

        No, that is your conclusion based on your erroneous interpretation of licensing and damages.

        No, it is a correct interpretation that you deem wrong not based on its essence, but on my pragmatic use of words to say that it comes down to. What you are saying is that my statements are correct, albeit nor using words that you like. Why are you afraid of clarity? Just try it: The license was deemed INVALID. It's not so hard to say, is it?

        Let me make my point clear that you are quarreling about words. Let's assume the court had said something like "We considered the license and deemed it as invalid. The conditions that commercial use and derivative works are prohibited or attribution must be given cannot be upheld. We, the court, thus judge that such use is allowed here, but a reasonable licensing fee, as usual on the market, needs to be payed in exchange. We see that 4.500 EUR are paid on the market for such use. Thus we merely enforce this payment here and do not judge any damanges on top of that."

        If I got you correctly, you would say that in this case, the court actually deemed the license as invalid. But you can easily see that this judgement comes down to exactly the same in all practical respects so they are entirely equivalent in their essence. They merely use different words to express the same essence.

        • "Words are never important, neither in legal discussions nor anywhere else. I am trying to use a language that is understandable and clear and says what things come down to, not sophisticated legal language that serves no other purpose than to make things hard to understand for oursiders. This is a problem in many other sciences, too."

          I am sorry, but that is a truly bizarre statement! I am sorry but I do not care if you have an idiosyncratic understanding of the legal terminology involved. You are trying to get involved in a legal discussion, so you will have to use the precise understanding of the legal language. This is not to make things "hard to understand for outsiders", it serves a clear purpose to avoid confusion. When I write in legal terms, the word "validity" in obligations has precise connotation specifically to avoid confusion.

          If you are unwilling to agrtee on this simple principle, then I do not see what is the usefuleness of this discussion, you will just continue to use your own personal meaning to conclude what you want to conclude.

          "You have to see that definitions are arbitrary and that even in legal matters words are used in all kinds of different meanings."

          Definitions in law CAN be arbitrary, but they have to be given by a recognised legal authority: legislation, doctrine, contract or case law.

          "Some use “invalid” to say that the conditions of the license could not be enforced; others use it so say that standard copyright came into effect instead of the license and conditions even stronger than the license were enforced."

          [CITATION NEEDED]

          "You are quarreling about words; please start discussing the essence of things."

          We cannot discuss the essence if your basic understanding of what you are trying to say is wrong. You claim that the licence is invalid by your own strange definition of validity. I say that it clearly is not in the legal sense. This is a legal argument. If you refuse to agree on the basic terminology, there cannot be a discussion about the essence.

          " But that is exaclty what I say: De facto, the court deemed the license invalid."

          Can we agree on something? Stop using the term "invalid" because I am never going to agree with you. The licence is by definition not invalid because it was applied and enforced by the court! Please, this is important. I will have to assume that you are trolling if you continue to ignore this important point.

          "You are claiming that there has never been a case in Belgian law where works were used without any permission or license at all that you can look at and see the result. Such a claim is absurd."

          Not at all, what I am claiming is that the award of damages is done on a case by case basis. If the fact of the case were different, I have no idea what the court would have awarded. Take a look at the Jammie Rasset-Thomas case in the United States. There have been three separate trials with the same facts, and the damages have ranged from $220k to $1.7 million. That is one single case, with the same person, the same facts, and the same lawyers, producing a staggering swing of $1.5 million dollars. Your claim that you know what the court would have awarded if the facts were different shows a deep misunderstanding of how the award of damages works, and therefore misinforms the rest of your argument.

          "You miss my point entirely. If you think it matters if the song is available for download for free somewhere, then simply take the situation in which the songs were sold in store instead, and never downloadable from any website. The point is that the clause saying all rights are terminated on violation of the CC-BY-NC-ND is de facto deemed as invalid here, because the court would obviously not grant the same amount of damages as in a case where no license was used."

          No, I perfectly understand it, but you seem entirely reluctant to understand the way in which damages are awarded. I repeart, damages are awarded on a case by case basis, in this case the court decided on a specific award of damages, which by the way, as I keep repeating, is the very definition of validity. The licence is valid because it produced legal effects. The clue is in the fact that the first question the court consider was wether the licence was valid. This is not just an idle discussion, if the answer had been negative, then the court would not even have attempted to determine the amount of damages.

          Your entire argument rests on a basic misunderstanding of this very important legal definition.

          "A rational interpretation, certainly not a mechanistic one. But you are essentially saying that there is no rationality in law and things can be this way or that way; they are arbitrary."

          BINGO! The law is indeed often arbitrary, irrational and subjective. Time and time again you will find legal decisions with which many people disagree, but they are the law because the court determined it to be that way, even if we believe that they may have gotten it wrong. If we could have mechanistic decision trees to produce legal results, then we would not need courts.

          By the way, I am quite curious as to why you consider your analysis "rational" when it fails to even consider the basic building blocks of what constitutes a legal argument. I find your complete interpretation irrational because it is resting on your very own definition of validity. The entire edifice falls if you use the standard legal definition of what constitutes a valid licence.

          “We considered the license and deemed it as invalid. The conditions that commercial use and derivative works are prohibited or attribution must be given cannot be upheld. We, the court, thus judge that such use is allowed here, but a reasonable licensing fee, as usual on the market, needs to be payed in exchange. We see that 4.500 EUR are paid on the market for such use. Thus we merely enforce this payment here and do not judge any damanges on top of that.”

          No, no, no, no. This is where you are going completely wrong. If the court had declared the licence invalid, it would have said the following:

          "The court refers in particular to doctrinal comments by Mr. Ph. Laurent, and confirms that the Creative Commons license is invalid and inapplicable to this case. The case is therefore dismissed.”or: The licence is invalid, so we will proceed to analyse the case like this…", depending on the procedural leeway of each jurisdiction.

          Do you see the difference? Again, this is very important, we cannot continue until you see this point.

  4. I am sorry, but that is a truly bizarre statement! [...]

    I agree that this is the position held by virtually all scholars and so it may seem bizarre to you, but I seriously think it is wrong nevertheless. Definitions do not make things more precise; the opposite is true.

    If you are unwilling to agrtee on this simple principle,

    Yes, I disagree on this simple, and commonly accepted, but false principle.

    then I do not see what is the usefuleness of this discussion, you will just continue to use your own personal meaning to conclude what you want to conclude.

    You cannot make conclusions from definitions, you can only make them from statements. In principle, you can eliminate all definitions and work only with undefined terms. Thus, in sharp contrast to common assumption, it is the undefined terms that are really fundamental and important.

    Definitions in law CAN be arbitrary, but they have to be given by a recognised legal authority: legislation, doctrine, contract or case law.

    So you are taking an authoritarian position and say that justice is whatever authority says it is and that what the authority says may not be questioned or reformulated in understandable terms. I take the exact opposite position. I say that justice does not depend on authority at all, and a false statement does not become true merely because it is based on definitions made by authority or because the statement itself was made by authority.

    [CITATION NEEDED]

    I am not claiming that someone has said that before, or even would agree with it. I am claiming that it is true.

    We cannot discuss the essence if your basic understanding of what you are trying to say is wrong.

    This is incorrect, since discussion essentially consists of criticism, of pointing out contradictions. What you do is take a so called "justificationist" position in which basic principles need to be agreed upon and then any other statement must be justified from these basic principles. I take the opposite view: We don't need to agree on anything at all to have a meaningful discussion; and in fact the more we disagree, the better, and the more fruitful the discussion will be.

    You claim that the licence is invalid by your own strange definition of validity. I say that it clearly is not in the legal sense. This is a legal argument. If you refuse to agree on the basic terminology, there cannot be a discussion about the essence.

    I do not base my statements on definitions or any other alleged authority at all. There is no "legal sense" of saying things, there is only one sense to say things, but perhaps using different words, since logic holds for any kind of statement, and is not different for legal statements than for any other kind of statements. A discussion about essence is not one about definitions or other ways to justify things. It is, on the contrary, a discussion about the consequences. And this discussion is well possible without agreement on basic terminology or anything else.

    Can we agree on something? Stop using the term "invalid" because I am never going to agree with you.

    So you are saying you are not going to agree even if you are wrong. That's sad, but some people prefer belief over reason. You have to come to terms with yourself about holding fast to false beliefs and the unavoidable consequences of doing so. Or, put differently, you can believe strongly that there is no such thing as gravity, and even justify this by getting authority to make appropriate definitions or to pass a law that says so or get a court to judge; it won't change the fact that you probably die if you jump from a skyscraper

    The licence is by definition not invalid because it was applied and enforced by the court! Please, this is important. I will have to assume that you are trolling if you continue to ignore this important point.

    The license was not applied and not enforced by the court, despite the court's claim to do so. The part of the license which says that it becomes void has been judged as being paradoxical by the court, thus invalid. This is the important point that you seem to deny. Instead of granting damages the same amount it would have if it was a violation of standard commercial music not freely available for download, the court said that merely fees usual on the market have to be paid for the use. If anyone is trolling here it is you by denying that the word "invalid" is perfectly adequate for this.

    Not at all, what I am claiming is that the award of damages is done on a case by case basis.

    And this is wrong. A case by case judgment would be if you change the amount of damages based on the situation. Here, it was varied not based on the situation at all, but based on alleged paradoxes of the license itself, and its alleged "noncommercial ideology", which, if assumed to exist, is inherent in the license itself and not merely an accidental property of the situation that varies from case to case.

    Your claim that you know what the court would have awarded if the facts were different shows a deep misunderstanding of how the award of damages works, and therefore misinforms the rest of your argument.

    In fact, I do not care about how the award of damages works at all. I merely care about what it comes down to. Do I get less money for copyright violation for my works if I use a CC-BY-NC-ND than I would get for standard commercially sold music? Or, put differently: Does the CC-BY-NC-ND weaken my position with respect to compensation claims for copyright violation, despite the fact that the license tries its best to avoid this?

    The licence is valid because it produced legal effects.

    But it is the very intent of the license NOT to produce legal effects when it is violated, to make standard copyright law apply, and make it available as a legal basis for damage claims. By saying that the license produced legal effects and given that these effects are opposite to the intention of the license, it comes down to the license being deemed invalid here, at least in part.

    The clue is in the fact that the first question the court consider was wether the licence was valid. This is not just an idle discussion, if the answer had been negative, then the court would not even have attempted to determine the amount of damages.

    You are not using the word "invalid" with a "precise connotation specifically to avoid confusion" that you promise. You are oscillating between two meanings, one meaning really the license has no effect, the other meaning some of its conditions have no effect, while the permissions remain in effect. In the context you are discussing, the court rejecting the validity of the license as a whole, your conclusions are simply wrong. If the answer had been negative, with the court claiming the license to be invalid, then the court would have to apply standard copyright law. The GPL2 has a clever statement to explain this: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law [otherwise]" A license is an unilateral permission to do something that would be forbidden by law otherwise. It does not cause any restrictions and does not put any obligations on the licensee. All it does is to protect the licensee from the claims of the licensor in case the licensee is sued by the licensor for alleged copyright violation that is in fact permitted by the license. There is an excellent discussion of this at http://lwn.net/Articles/61292/

    BINGO! The law is indeed often arbitrary, irrational and subjective. Time and time again you will find legal decisions with which many people disagree, but they are the law because the court determined it to be that way, even if we believe that they may have gotten it wrong.

    If the court's decision was incorrect, then its decision is not law, but is in conflict with law, simple as that. If other courts apply the incorrect decision to other cases, in conflict with law, then they are incorrect also. Wrong things do not become right merely because they are done by authority.

    If we could have mechanistic decision trees to produce legal results, then we would not need courts.

    That is why I emphasized it is a rational(istic) position that I hold, not a mechanistic one. Mechanistic decision trees work only as long as no contradictions occur, as they certainly do in arguments and counter-arguments during proceedings. One specific case of this is empirical tests. A mechanistic decision tree obviously cannot do this.

    By the way, I am quite curious as to why you consider your analysis "rational" when it fails to even consider the basic building blocks of what constitutes a legal argument.

    That is so because rationality does not depend on reasons or justifications or other alleged basic building blocks, as I already mentioned.

    I find your complete interpretation irrational because it is resting on your very own definition of validity. The entire edifice falls if you use the standard legal definition of what constitutes a valid licence.

    My arguments are not justificationist, are not based on definitions. Thus, they are certainly not invalidated by considering other definitions made by authority or other. I doubt you yourself have a definition of validity that you use consistently in what you write. You vary the meaning depending on context. (That's not a problem for me, though, it is merely an attack on your self-consistency.)

    No, no, no, no. This is where you are going completely wrong. If the court had declared the licence invalid, it would have said the following:

    "The court refers in particular to doctrinal comments by Mr. Ph. Laurent, and confirms that the Creative Commons license is invalid and inapplicable to this case. The case is therefore dismissed.”

    See above about the difference between a license and a contract. The case cannot be "therefore dismissed" if the license as a whole is deemed invalid. It can only be dismissed if conditions are deemed invalid. But that is exactly what happens in my example. I can reword it if you like: “The license (meaning its conditions that commercial use and derivative works are prohibited and attribution must be given) is invalid, so we will proceed to analyse the case like this: Commercial use and derivative works and omission of attribution were done in a context where commercial licensing is commonly used, so we assume the use of such a commercial license. These licenses require the payment of licensing fees in exchange for permission to use. We see that 4.500 EUR would be the fee, usual on the market, that one has to pay in such a context.”

  5. I will try to distill the discussion to the main points of disagreement to keep it manageable.

    "I agree that this is the position held by virtually all scholars and so it may seem bizarre to you, but I seriously think it is wrong nevertheless. Definitions do not make things more precise; the opposite is true."

    If you decide to define apples as oranges, and then go on to say "All apples are orange", your statement may be sound, but it is not true because you are using your own definition of a commonly accepted word. Definitions in law are not only important, they are vital. This is because legal concepts often have a different meaning that they would have in common usage. If you do not define terms like "contract", "right", "obligation", "licence", "copyright", "fair use" and "infringement", then you end up talking about something else entirely, you need to define those terms. What you are doing here is almost the same as if you had decided to define trademarks as copyright, just because you feel like it. This, by the way, happens all the time, non-specialists confuse copyright, patents and trademarks all the time in common speech. Should we therefore believe that the confusion should be allowed to stand?

    "This is incorrect, since discussion essentially consists of criticism, of pointing out contradictions."

    No, legal analysis does not consist at all of that. You are trying to mix and match analytical methods. You are using your own definitions to criticise a legal ruling, when such decisions have to be subjected to specific methodology. First, you need to determine what law applies (in this case the Belgian law of contract and the Belgian (and to a lesser extent the European) law of copyright). Then you have to determine what the court ruled. Then you have to analyse what the court said. You are not following this methodology. You have determined that the licence is invalid because you say so, despite the fact that the court is telling you that it is valid.

    "I do not base my statements on definitions or any other alleged authority at all. There is no “legal sense” of saying things, there is only one sense to say things, but perhaps using different words, since logic holds for any kind of statement, and is not different for legal statements than for any other kind of statements."

    This is a contradiction. You are in fact relying heavily on an authority, namely the court's decision. You are using the court's decision as an authority to support your own assumption that the licence is invalid, yet turn and say that there is no such thing as a legal authority.

     Let's put this to the test. Go out to the street and throw a brick at a building. When the police arrive, you can tell them that you do not recognise their authority, and that there is no such thing as "legal sense". This might give the judge a bit of a chuckle, that you are just looking for the contradiction in the legal argument protecting property law.

    "The license was not applied and not enforced by the court, despite the court’s claim to do so. The part of the license which says that it becomes void has been judged as being paradoxical by the court, thus invalid."

    This is the statement that is wrong, and you are simply not getting the reason why you are wrong. The court has found the licence valid, they are telling you that they found it valid. You completely misunderstand the nature of the void clause, and the very fundamental nature of what a licence is, and how it is applied.

    "A case by case judgment would be if you change the amount of damages based on the situation. Here, it was varied not based on the situation at all, but based on alleged paradoxes of the license itself, and its alleged “noncommercial ideology”, which, if assumed to exist, is inherent in the license itself and not merely an accidental property of the situation that varies from case to case."

    Once again, damages are awarded on a case by case basis. If you change the facts of the case, you get different damages, and as I have pointed out, you may also get different damages even with the same facts. UK copyright law is a typical example of copyright damage in Europe (see s97 CDPA). By the way, from that statement I am guessing that you are a free software advocate as well, no?

    "You are not using the word “invalid” with a “precise connotation specifically to avoid confusion” that you promise. You are oscillating between two meanings, one meaning really the license has no effect, the other meaning some of its conditions have no effect, while the permissions remain in effect."

    No, you are confusing two different legal concepts, the validity of the licence as a whole, and the validity of specific clauses. Courts can strike down a clause (therefore rendering that specific clause invalid), yet the rest of the licence can be valid. This is done all of the time in practice, and it is done for legal security, an important principle of law. Let's say that a court does not like the copyleft clause in the GPL v2, they can perfectly strike out the clause without affecting the rest of the licence.

    "All it does is to protect the licensee from the claims of the licensor in case the licensee is sued by the licensor for alleged copyright violation that is in fact permitted by the license. There is an excellent discussion of this at <a onclick="javascript:_gaq.push(['_trackEvent','outbound-comment','lwn.net']);" href="http://lwn.net/Articles/61292/&quot; rel="nofollow"> <a href="http://lwn.net/Articles/61292/"” target=”_blank”>http://lwn.net/Articles/61292/"

    But licences are also contracts (particularly in Europe). I have written extensively about this topic (including citing the Pam Jones article you cite to support). Here is a link to my article.

    "The case cannot be “therefore dismissed” if the license as a whole is deemed invalid. It can only be dismissed if conditions are deemed invalid."

    And here you are also completely wrong. clauses can be invalid without invalidating the entire licence.

  6. If you decide to define apples as oranges, and then go on to say "All apples are orange", your statement may be sound, but it is not true because you are using your own definition of a commonly accepted word. What you are doing here is almost the same as if you had decided to define trademarks as copyright, just because you feel like it.

    This whole statement presupposes the justificationist framework which I don't agree with. It is not my intent to make any definition *at all*, like defining apples as oranges, or to define validity. I disagree with the very act of defining, and with the view that truth depends on application of or reduction to (commonly accepted or other) definitions.

    Definitions in law are not only important, they are vital. This is because legal concepts often have a different meaning that they would have in common usage. If you do not define terms like "contract", "right", "obligation", "licence", "copyright", "fair use" and "infringement", then you end up talking about something else entirely, you need to define those terms.

    Definitions are not important, neither in legal matters nor anywhere else. As I said, we can eliminate them by replacing the defined words by what they have been defined as. If one repeats this process sufficiently often, one will come down to a sentence where all words are undefined, and then we can start discussion. So what comes first in a rational discussion is removal of definitions, not agreement on them.

    This, by the way, happens all the time, non-specialists confuse copyright, patents and trademarks all the time in common speech. Should we therefore believe that the confusion should be allowed to stand?

    Yes. We should not quarrel about words with these people, but discuss with them about the views they hold. Usually, these people hold that copyright, patent law and trademark law should be unified and should be made more like the intuitions expressed by the metaphor "intellectual property".

    No, legal analysis does not consist at all of that. You are trying to mix and match analytical methods. You are using your own definitions to criticise a legal ruling, when such decisions have to be subjected to specific methodology. First, you need to determine what law applies (in this case the Belgian law of contract and the Belgian (and to a lesser extent the European) law of copyright). Then you have to determine what the court ruled. Then you have to analyse what the court said. You are not following this methodology.

    Right, I am not following this methodology and I don't have to, since my arguments are purely based on logic. Logic is universal, it does not depend on specific methodologies or laws. For example, a self-contradictory statement is self-contradictory regardless of whether it concerns biology, mathematics, chemistry, economics, philosophy or, for that matter, legal matters.

    You have determined that the licence is invalid because you say so, despite the fact that the court is telling you that it is valid.

    No, I have said that *the court* has determined the license to be de facto invalid, despite that court at the same time claiming it to be valid.

    This is a contradiction. You are in fact relying heavily on an authority, namely the court's decision. You are using the court's decision as an authority to support your own assumption that the licence is invalid, yet turn and say that there is no such thing as a legal authority.

    First, it is not my own assumption that the license is invalid. I think that the court's decision that the license is de facto invalid is wrong. Second, even if I were agreeing with the decision of the court, it wouldn't mean I was relying on it as an authority or using it to support my view. And I am not saying that there is no such thing as a legal authority; I am merely saying that it doesn't make the authority, its statements and its definitions in any way immune to or exempt from criticism; things are not true BECAUSE authority says so or BECAUSE of anything, the question of truth is simply completely independent from that. To evaluate their truth is to check their consequences, looking for contradictions (empirical ones, internal ones etc.), not seek support or reasons for them or reduce them to definitions made by authority.

    Let's put this to the test. Go out to the street and throw a brick at a building. When the police arrive, you can tell them that you do not recognise their authority, and that there is no such thing as "legal sense". This might give the judge a bit of a chuckle, that you are just looking for the contradiction in the legal argument protecting property law.

    I don't get what you are trying to say. What I was trying to say is this: If I throw a brick at my own building, and the police arrives and brings me to the custodial judge, and the judge sends me to prison, then none of this was right, regardless of the fact that they are the authorities. Even if law said so, it wouldn't be right. Truth is objective and absolute; it exists independ from authority.

    This is the statement that is wrong, and you are simply not getting the reason why you are wrong. The court has found the licence valid, they are telling you that they found it valid.

    Yes. By claiming they found it valid, they were making a statement about themselves which, given their decision, was objectively false.

    You completely misunderstand the nature of the void clause, and the very fundamental nature of what a licence is, and how it is applied.

    I already know that you think so, yet you supply no argument, let alone a convincing one. Well, actually, your link arguing for licenses as contracts gives me some idea, if this is what you mean by "very fundamental nature of what a licence is". I disagree with this, but I think it would go too far to start discussing this, since your position seems to be quite elaborate, and it would take several pages to dissect the several pages of your paper, and too much time, given that I am not an expert, rather the usual kind of hacker who sees licensing questions as a liability, not as an asset, that arises as an unwanted side-effect of writing and using software.

    Once again, damages are awarded on a case by case basis. If you change the facts of the case, you get different damages, and as I have pointed out, you may also get different damages even with the same facts. UK copyright law is a typical example of copyright damage in Europe (see s97 CDPA).

    But damages were not awarded by considering the particularities of the case. They were awarded considering merely the license and its alleged noncommercial idology. Damages might be awarded by considering the case, sure. For example if a court considers the number of infringing copies that were made, or whether violation of the license was stopped quickly or slowly after notification of the violation. No such case-by-case stuff was considered here. All that was considered here holds for all cases involving this license.

    By the way, from that statement I am guessing that you are a free software advocate as well, no?

    Yes, I do support free software.

    No, you are confusing two different legal concepts, the validity of the licence as a whole, and the validity of specific clauses. Courts can strike down a clause (therefore rendering that specific clause invalid), yet the rest of the licence can be invalid.

    You were claiming there is "precise connotation specifically to avoid confusion". Now you say I am "confusing two different legal concepts", yet you use the word "validity" for both of them. What could be a better demonstration of my whole point than this.

    But licences are also contracts (particularly in Europe). I have written extensively about this topic (including citing the Pam Jones article you cite to support). Here is a link to my article.

    I like your presentation of the various views held and decisions made by courts. But I do not agree with your own conclusion and I dislike that you hardly bother to critically examine the consequences of classifying licenses as contracts and instead mainly concentrate on pointing out benefits of this view.

    And here you are also completely wrong. clauses can be invalid without invalidating the entire licence.

    One can say "the license was deemed invalid" if one means one specific clause, not the entire license, was deemed invalid. I used "(at least in part) invalid" pretty frequently, so I think it is clear what I meant.

  7. We keep running around in circles. I asked if you were a free software supporter because it shows, you make several statements throughout the discussion about truth and absolutes. It is also clear that you have decided that the licence has to be invalid because of ideological reasons; it also would appear that you are not a fan of non-commercial licences, and therefore you need to find fault with the decision. It also became clear to me that you are a software developer of some sort, because your arguments are akin to those I encounter time and time again at FOSS conferences. You seem to be under the mistaken impression that the law deals in absolutes, and that if you can find one contradiction in one ruling or a licence, then the entire edifice falls down. This couldn't be further from the truth, the law is a living thing, always adapting, always changing. There are no absolutes in law. Therefore, finding one disparity between what you think the licence says, and its application by the court does not invalidate the licence.

    Here is my position one last time. The licence is valid because it produced legal effects (damages), which is the very concept of validity. If the licence was invalid, then the court could have dismissed the case. The court also recognised that it was a valid licence explicitly. Everything else after that is not an argument about the validity of the licence, but about the specific interpretation of the clauses and the award of damages. There is no such thing as "de facto invalidity", this is a fiction that you have invented.

    After recognising that the licence is valid, the court went on to analyse the specifics of the case. The court recognised the core licence elements and agreed that the theatre had breached those terms (remember that the licence is a contract in Europe, I know you do not agree with this, but this is a fact of law, not open to discussion). By recognising that the theatre was in breach of the licence, then the court proceeded to award damages. The court has to leave the attribution clause intact because it is a moral right, and moral rights are inalienable. This is what it means to interpret a licence in accordance to the law. It is not declaring the void clause invalid, it is simply accommodating the licence to a feature that is shared across all Droit d'Auteur jurisdictions, namely, that moral rights are to left untouched.

    The court considered the specifics of the licence in its discussion of its award of damages. Courts can do that. I tend to agree with their reasoning, as the amount of money awarded should be proportional to the actual damage, and the fact that the work is offered under an open licence should be taken into account in making such an assessment. However, THIS DOES NOT INVALIDATE THE LICENCE! Sorry for shouting, but this is the main thing you need to understand in this case. The same amount of damages may have been reached with All Rights Reserved if the court considered that the amount of damages asked for was excessive to the amount awarded. If the licence was invalid, there would not have been damages awarded.

  8. You are presupposing a philosophical and epistemological framework that I do not agree with; you deny the objectivity of law and of truth, based on several well-known, though popular misconceptions. What you criticize about my views is often not a consequence of my views, but merely the false consequences you get when you look at my views from your philosophical perspective.

    I did not decide that the license has to be (de facto) invalid (at least in part) because of ideological reasons. The court did that. I think the court is wrong about its decision. Non-commercial licenses are not an evil by themselves, but the ways in which they are often used are. There are works that definitely should not be licensed under non-commercial licenses. But there are works that can be licensed in such a way without any problems. The question of validity of such licenses is entirely different from the question of whether they should be used and in what circumstances.

    Law does deal in absolutes. That does not mean if one finds one contradiction in one ruling or license, the entire edifice falls down. If the contradiction is in the ruling, the ruling itself might be incorrect (which is the case here). If the contradiction is in the license itself (which is not the case here, contrary to the court's assumption), then that would make the license invalid, but the license could still be upheld in a slightly modified form, with the part changed that contains the contradiction (courts often do that and it was done here). It is similar to the following fact of logic: One false consequence is sufficient to make a statement false, even though it might also have a lot of true consequences and so a small change could make the statement true. Yet, even a small change makes it a different statement; it is not merely a different interpretation of the same statement.

    It is correct that law is a living thing, but this view isn't incompatible with the assumption that law deals with absolutes. You are confusing truth and what we think it looks like. You neglect the inherent fallibility of human knowledge and the impossibility to give a justification for our views. Perhaps I can recommend this book to you: http://www.amazon.com/Critical-Rationalism-David-… Perhaps you will understand my views once you have read it.

    If I find a disparity between what the license says and its application by the court, it does not invalidate the license. It simply means the court has judged the license to be invalid, while it might really be that the court just made an error doing that and the license is really valid. It might also be that the license is really invalid and the court was right in its decision. Here I think it is the court that is wrong, not the license that is invalid. If you look at the court's discussion on the case you see that it is very short. The court obviously does not have very much knowledge about the type of license under discussion, and it almost seems like it is quite incompetent about it. There is no critical discucssion of its "noncommercial ideology" argument by the court; it is simply stated and assumed to be this way. That doesn't make it wrong, but I think counter-arguments against the "noncommercial ideology" argument can be found easily. Was it even a real court? The decision looks like it was written by an arbitration court.

    Let me repeat my position: The license (erroneously) was deemed invalid by the court because the fee that had to be paid came down to that of a simple commercial license, while the CC-BY-NC-ND tries NOT to to permit commercial use. The court argued with the alleged non-commercial ideology of the license to award no damages and merely a the fee for commercial use as usual on the market. That I am the first to speak of “de facto invalidity” in this context does not make it non-existent. I disagree that the license is a contract in Europe or anywhere else in the world, and I disagree with your dogmatic attitude that claims this cannot be discussed.

    The court considered the specifics of the licence in its discussion of its award of damages. Courts can do that. I tend to agree with their reasoning, as the amount of money awarded should be proportional to the actual damage, and the fact that the work is offered under an open licence should be taken into account in making such an assessment. However, THIS DOES NOT INVALIDATE THE LICENCE! Sorry for shouting, but this is the main thing you need to understand in this case.

    It doesn't make your statement true if you repeat it often or if you shout it and it certainly won't become more convincing to me that way. What is comes down to is that it does invalidate the license if the court makes such an assessment. You are calling it by different names, avoiding the word "invalid", but it's just that. It's like saying the Michelson experiment didn't invalidate Newton's theory because it has still been applied successfully a lot in other circumstances.

    The same amount of damages may have been reached with All Rights Reserved if the court considered that the amount of damages asked for was excessive to the amount awarded.

    But that was not the argument of the court. The court referred to an alleged specific property of the CC-BY-NC-ND (its noncommercial ideology) that is not present in "All rights reserved" circumstances.

    If the licence was invalid, there would not have been damages awarded.

    Because a license is not a contract, standard copyright law would have come into effect if it were deemed invalid completely (including the permissions it gives, which is not what I said, I said that it was deemed invalid in part here, though erroneously). This is the same in Europe as it is anywhere else in the word.

    If I read you correctly, then everything you say essentially comes down to the position, not very popular in this context, that licenses are contracts. The rest of what you say follows from this. But that is a different discussion that I'm not going to have with you. I rather spend my time writing programs, that's more productive. Let's just agree to disagree.

  9. You are presupposing a philosophical and epistemological framework that I do not agree with; you deny the objectivity of law and of truth, based on several well-known, though popular misconceptions. What you criticize about my views is often not a consequence of my views, but merely the false consequences you get when you look at my views from your philosophical perspective.

    I am not looking at this from a philosophical perspective, this is a legal discussion so I am conducting a legal analysis of the sentence. This is not a philosophical issue, it is a matter of legal methodology. I am not saying that court rulings are immune from philosophical discussions, but in this case you are not making a philosophical argument, your opinion falls in the realm of legal study, and therefore it should follow the methodology of case law analysis and commentary. This is an important step, because what you seem to be doing is ignoring the surrounding aspects of a decision which inform it. The question has to be whether there is precedent, if the law is being properly applied, and whether or not the licence is invalid. This is legal methodology. If we were looking at an algorithm, I would surely defer to your expertise on the subject and would not assume to know the intricacies of a piece of code not being a programmer. If I came to you saying "that algorithm does not work because it does not comply with Article 8 of the Human Rights Convention", you would rightly laugh at me and ignore me.

    This is the same, you cannot analyse a sentence without its proper legal context. This is a copyright infringement ruling, but being also a contract in Europe, this is a question of validity. You cannot ignore this fact of law if you want to conduct a legal analysis of the decision. Similarly, there are other laws that you cannot ignore, namely, Droit d'auteur principles in Civil Law jurisdiction, such as moral rights. You cannot either ignore the damage regime. If you ignore the law, then your analysis is as valid as me stating that software algorithms violate human rights. It makes no sense.

    "If I find a disparity between what the license says and its application by the court, it does not invalidate the license. It simply means the court has judged the license to be invalid, while it might really be that the court just made an error doing that and the license is really valid."

    I've selected this paragraph as an example of where the sticking point is. This is nonsense because you are trying to make an argument of law without following the law. As I keep repeating, validity has a very clear definition in law (see Art. 1261 of the Spanish Civil Code as an example). A valid contract is one which can produce legal effects, has no vices and has been adequately formed. An invalid contract, by definition, does not produce legal effects. If we can agree on this point, then I think we can move forward to the more substantial interpretation that bother you.

    "I disagree that the license is a contract in Europe or anywhere else in the world, and I disagree with your dogmatic attitude that claims this cannot be discussed."

    It's not that it cannot be discussed, it is simply a matter of law. The licence is a contract in Europe and all Civil Law systems because licences are contracts in our system, not just open source, FS, CC and others, but all licences. The "contract is not a licence" meme comes from American lawyers, where that statement may be true, but it does not make sense anywhere else.

    "It doesn’t make your statement true if you repeat it often or if you shout it and it certainly won’t become more convincing to me that way. What is comes down to is that it does invalidate the license if the court makes such an assessment. You are calling it by different names, avoiding the word “invalid”, but it’s just that."

    Sigh… according to your very own definition of validity. The licence is valid because a) the court said it was valid; b) it produced legal effects (namely damages).

    Because a license is not a contract, standard copyright law would have come into effect if it were deemed invalid completely (including the permissions it gives, which is not what I said, I said that it was deemed invalid in part here, though erroneously).

    No. This is a Belgian court, it is reading the licence as a contract as well. You cannot ignore this fact, you may disagree with it, but you cannot ignore it. Take most of the cases so far which have validated the GPL in Germany (the various GPLviolations.org rulings). They all recognise that the GPL is a valid contract (see here for a good English report on one of the cases).

    By the way, I think that you are continuing to misread the ruling on damages, which seems quite clear. The licence is valid, the terms of the licence have been breached, the court decided to award damages and did so in accordance to the rules of procedure. Simples.

    If I read you correctly, then everything you say essentially comes down to the position, not very popular in this context, that licenses are contracts.

    It is the prevalent position in Civil Law countries. Belgium, is one such country.

  10. You are making the incorrect assumption that philosophy and law (or programming, for that matter) are separate realms in which different methods apply. That is not the case. There is really only one method, and this method is deductive logic. If you came to me, saying "that algorithm does not work because it does not comply with Article 8 of the Human Rights Convention", I would laugh at you not because you used human rights to argue about algorithms, but because your argument is not a valid logical conclusion (the Human Rights Convention says nothing from which you could make a conclusion about whether an algorithm works or not). If you manage to make an argument on algorithms that uses valid logic and that makes reference to the Human Rights Convemntion, it may very well be quite interesting. In fact, some computer scientists like Joseph Weizenbaum HAVE made such arguments. And they make quite some sense, which doesn't mean that I agree with them.

    I admit that I may be ignoring established legal methodology, law, case law etc. They are not relevant for my point. Your argument in this respect (me not using established legal methodology etc.) is again one about me not justifying what I say, which IS a philosophical position after all. Already saying things like "I am not looking at this from a philosophical perspective, this is a legal discussion so I am conducting a legal analysis of the sentence" constitutes a philosophical position with important philosophical consequences. You do not escape the realm of philosophy by calling this part of the world "philosophy" and that part "law" and then claim that different kinds of rules apply for the one than for the other. Logic has no limits; its validity doesn't stop if it hears you saying "this is a legal discussion".

    A valid contract is one which can produce legal effects, has no vices and has been adequately formed. An invalid contract, by definition, does not produce legal effects. If we can agree on this point, then I think we can move forward to the more substantial interpretation that bother you.

    This presupposes again that licenses are contracts. Your whole argument rests on this asumption, as I said.

    It's not that it cannot be discussed, it is simply a matter of law. The licence is a contract in Europe and all Civil Law systems because licences are contracts in our system, not just open source, FS, CC and others, but all licences. The "contract is not a licence" meme comes from American lawyers, where that statement may be true, but it does not make sense anywhere else.

    I disagree. I have seen no discussion so far that convincingly argues for licenses as contracts.

    Sigh.. according to your very own definition of validity.

    No, not according to any definition at all. I do not have a "definition of validity". Definitions are irrelevant to discussion. I am merely using the word. Pick any other word you like better and imagine this word were used instead of "invalid" if the word "invalid" is a problem for you.

    No. This is a Belgian court, it is reading the licence as a contract as well. You cannot ignore this fact, you may disagree with it, but you cannot ignore it.

    If the court is reading it as a contract, then it is wrong. It would explain its erroneous judgment, though.

    Take most of the cases so far which have validated the GPL in Germany (the various GPLviolations.org rulings). They all recognise that the GPL is a valid contract (see here for a good English report on one of the cases).

    No, they do not. "The Court continued by making the general statement that it considered the GPL license condition to be standard terms of business". Sure, it then says "The Court examined whether the GPL had been incorporated into the contract pursuant to § 305 Abs. 2 BGB." But the "possible [!] contractual relationship" it is talking about is not the GPL itself; it is an implied contract about transfer of rights. This is the key difference; this way the conditions of the GPL do not become obligations, as they would if the GPL itself were a contract. Sure, there might be a contract somewhere, but that's a purely theoretical and academic question; it doesn't matter in practice as long as it comes down to the "American view" in all practical respects.

    So they key point is that the GPL is not a contract. To my knowledge, the GPL has never been assumed to be a contract in Germany. In fact, the argument that invalidity of the GPL would bring standard copyright law into effect was used heavily by the German courts in the GPLviolations.org rulings as far as I remember. In the example you gave: "… the legal consequences of a valid limitation in content of rights of use on the one hand and an automatic reversal of such rights on the other can be just the same when a licensee does not adhere to the GPL conditions. In both cases the licensee will hold no rights of use, albeit for different reasons."

    By the way, I think that you are continuing to misread the ruling on damages, which seems quite clear. The licence is valid, the terms of the licence have been breached, the court decided to award damages and did so in accordance to the rules of procedure. Simples.

    That is what the court might use to "justify" its decision, but it is irrelevant for the decision itself. The decision itself is that A has to pay B 4500 EUR, not 10000 EUR. And this, in effect, comes down to saying that no damages were awarded, but merely fees for use, which conflicts with the license itself. Sure… The way a justificationist sees the world is different. Your philosophical framework forces you to see decisions that actually come down to be the same thing as different if they are justified differently. So for you, it would be perfectly ok to say the decision "A has to pay B 4500 EUR, not 10000 EUR" deems the license as invalid if the court justified the decision with the invalidity of the license, and you would say it deemed the license as valid if the court justified its decision with the validity of the license. Despite the fact that in both cases the decision is exactly the same, it would make a difference for you concerning whether the licence has been deemed as valid or invalid. But that is nothing else than asking to obey the authority of the court and to use the word "invalid" only in the way the court is using it (or the law it is taking this use from).

    • BTW, I call the xkcd trump card.

      "I mean, what's more likely — that I have uncovered fundamental flaws in this field that no one in it has ever thought about, or that I need to read a little more? Hint: it's the one that involves less work."

  11. The licence is a contract. Here is yet another example from another GPL case, where the German court opined the following:

    "Since the conditions of the license granted by the GPL are easily available on the Internet, they were without a doubt incorporated into the contractual relationship between the authors and Defendant (Section 305, Subsection 2, No.2 of the German Civil Code (BGB)).

    Pursuant to Sec. 4 of the GPL the rights under the GPL are terminated and revert to the author if the user violates the obligations set forth in Sec. 2 of the GPL. In particular, these obligations provide that the user has to publish a disclaimer of warranty on each copy [of the program], make reference to the GPL, accompany the program with the license text, and provide the source code of the program. These rules do not unduly discriminate the user and are therefore not invalid pursuant to Section 307, Subsection 2 No. 1 of the German Civil Code (BGB)."

    In civil law jurisdictions, there is a valid contract when there is offer and acceptance, which is fulfilled in these cases. The acceptance is the use of the software and/or work under the terms and conditions of the licence. If there is no acceptance, then the work cannot be used because there is no licence.

    The distinction between licence and contracts exists only in the United States, Australia and England, and the fact that licences such as the GPL were drafted in those countries does not remove the fact that in civil law systems, they are contracts because they fulfill the requirements for a contract. This is why it is so important that the court declared the licence valid. The rest is simply an interpetation of the contractual terms and conditions, which is precisely what the court did.

    The court decided to award 4,500 EUR to the plaintiffs, which is less than they asked for. This is perfectly compatible with the law, and makes the licence still valid. There is no distinction in this case between damages and "fees for use", the fees not received ARE the damages awarded. This is another legal distinction that you have failed to incorporate into your analysis.

    So, the licence is valid because it produced an award, this is the most simple distillation of what the ruling is about. We have a valid contract, and the court enforces it by awarding damages (the clue is that the section of the ruling is called "Damages").

  12. Again what you quote doesn't say the GPL is a contract. It says the same as above: "the conditions of the license … were … incorporated into the contractual relationship between the authors and Defendant" (all emphasis added by me, please consider each one carefully and carefully read what is actually said). I can only repeat what I said: "Sure, there might be a contract somewhere, but that’s a purely theoretical and academic question; it doesn’t matter in practice as long as it comes down to the 'American view' in all practical respects. … the key point is that the GPL is not a contract"

    The distinction between licence and contracts exists only in the United States, Australia and England, and the fact that licences such as the GPL were drafted in those countries does not remove the fact that in civil law systems, they are contracts because they fulfill the requirements for a contract. This is why it is so important that the court declared the licence valid. The rest is simply an interpetation of the contractual terms and conditions, which is precisely what the court did.

    Yes, the GPL contains terms and conditions, and yes, if there is a contract, then these terms and conditions apply to this contract in a certain way. But it doesn't make the GPL or its terms and conditions a contract. If there is a contract, then it exists independent from the GPL and the GPL's terms and conditions, and if the GPL would turn out to be invalid, it wouldn't invalidate the contract. Instead, standard rules of copyright law would apply in this case, which means there will be the same effects as in the "American/Australian/English view". There is no practical difference. It only makes a practical difference once you incorrectly see the GPL itself as a contract, which you seem to do.

    The court decided to award 4,500 EUR to the plaintiffs, which is less than they asked for. This is perfectly compatible with the law, and makes the licence still valid. There is no distinction in this case between damages and "fees for use", the fees not received ARE the damages awarded. This is another legal distinction that you have failed to incorporate into your analysis.

    I do not care about purely theoretical distinctions that are irrelvant for practice. The license does not give a permission for commercial use in exchange for a fee. The court's decision still amounts to exactly that and thus deemed the license de facto as invalid and instead de facto asssumed such a permission. Only if you assume such a permission, you could argue there was a damage in fees not received. However, the actual damage here, if one ignores the court's erroneos assumptions for a moment, is the breach of copyright, not the non-receipt of a fee. The licensee used the work without permission and thus violated copyright. The goal of the license by itself is to inhibit commercial use, not to earn fees! Using the "contract" view: The licensee violated the terms of the license, in which case the contract terminates all rights that have been granted (not merely those used in an infringing way!) and only standard rights granted by law (the right to quote etc.) remain. The effect is the same.

    So, the licence is valid because it produced an award, this is the most simple distillation of what the ruling is about.

    You can only argue like that if you assume the license itself to be a contract, which it isn't.

    If the court assumed the license itself to be a contract, then in this context, what you say is correct: The court deemed the license as valid in this sense. But then the court has made a completely invalid interpretation, and if one uses the correct interpretation of things, with the license not being a contract, one sees that the court HAS deemed the license as invalid.

    We have a valid contract, and the court enforces it by awarding damages

    We do not have the license as a contract, but perhaps the court incorrectly thinks so and thus incorrectly grants these damages for breach of a contract that doesn't actually exist.

    (the clue is that the section of the ruling is called "Damages").

    It doesn't matter what the section is called. It doesn't make a real difference beyond words.

  13. "Again what you quote doesn’t say the GPL is a contract. It says the same as above: “the conditions of the license … were … incorporated into the contractual relationship between the authors and Defendant” (all emphasis added by me, please consider each one carefully and carefully read what is actually said)."

    Here is another example of your unfamiliarity with the legal terminology. Incorporation of terms is an important step in contract formation. The terms are incorporated into a contractual relationship, the licence IS the contract because it sets the parameters of the contractual relationship, this is the same thing that applies when you sign a contract with your bank. They give you a list of terms and conditions, you either sign or you don't. The contract is the terms and conditions, the clue is in the fact that you usually are asked to sign the contract.

    "If there is a contract, then it exists independent from the GPL and the GPL’s terms and conditions, and if the GPL would turn out to be invalid, it wouldn’t invalidate the contract."

    You are almost there, but you are missing one step. If the GPL is invalid, there is no contract because there is no incorporation of terms, there would be no contract because the parties have not agreed to any terms and conditions.

    "Instead, standard rules of copyright law would apply in this case, which means there will be the same effects as in the “American/Australian/English view”. There is no practical difference. It only makes a practical difference once you incorrectly see the GPL itself as a contract, which you seem to do."

    If court after court declares it a contract (that is what incorporation of terms means), if it fulfils the contractual formation requirements set out by the applicable Civil Code, if it creates obligations amongst the parties and it produces legal effects… then it is a contract. You have not provided a single legal argument as to why it is not a contract, other than your opinion. By the way, I did not say that the licence is not a contract in Common law countries, there are several scholars who agree with me on this point. The only difference is that in these systems, particularly in the United States, there is a legal difference between a contract and a licence, some courts have declared them as such. This is not the case in civil jurisdictions, where all licences are contracts. I am not even stating something that is controversial in civil jurisdictions, you only have heard the FS side of the story, which applies only to U.S. law.

    "The license does not give a permission for commercial use in exchange for a fee. "

    No, this is a monumentally wrong reading of the non-commercial clause, and it is the other reason why your analysis fails. It is perfectly permissible to allow commercial uses in exchange for a fee, all CC non-commercial licences allow this! It is perfectly permissible for the parties to amend the terms and conditions in writing to allow any of the acts restricted by the licence separately (see section 8, c ad d). to give you a personal example, myforthcoming book will be released under a BY-NC-ND licence, I have given the publishers in writing exclusive commercial rights over the work, I will receive payment when they sell the book. This is compatible and in accordance to the licence, it is fine to negotiate fees individually.

    "The licensee used the work without permission and thus violated copyright. The goal of the license by itself is to inhibit commercial use, not to earn fees!"

    No, here you are mistaken as well. The licensee was in breach of the terms and conditions of the licence by using the work commercially. If the licensee had come to the author and asked for permission to use the work in exchange of a fee, this would have been perfectly acceptable as long as such an agreement is done in writing. The purpose of NC licensing is not to inhibit unauthorised commercial use!

  14. Here is another example of your unfamiliarity with the legal terminology. Incorporation of terms is an important step in contract formation. The terms are incorporated into a contractual relationship, the licence IS the contract

    No, it is not. You are claiming "unfamiliarity with the legal terminology" simply to deny what is said there. The license is not the contract. German law has different rules for contracts on the one hand and terms and conditions on the other. That alone shows the one cannot be the other.

    You are almost there, but you are missing one step. If the GPL is invalid, there is no contract because there is no incorporation of terms, there would be no contract because the parties have not agreed to any terms and conditions.

    The GPL is not a contract and what you say is not true. If there is a contract, it is there as soon as the licensee obtains a copy of the work, independent from the license itself. Then, the terms and conditions of the license are incorporated into that contract. Finally, if the license is violated, the contract has, according to the terms of the license, the effect that the rights granted are withdrawn, and standard rules of copyright apply again. If the GPL is invalid, then the contract is still established, albeit with GPL terms and conditions that are slightly modified, or, if it is invalid entirely, then the contract is governed by the standard rules of copyright.

    You have not provided a single legal argument as to why it is not a contract, other than your opinion.

    Oh, I did that, you just don't want to accept it, for whatever reason. I quoted from the description of the German court case cited by yourself. It says: "The Court continued by making the general statement that it considered the GPL license condition to be standard terms of business" (this time emphasized by me). It says "standard terms of business" ("Allgemeine Geschäftsbedingungen"), which are governed by 305ff BGB. It doesn't say "Contract" ("Vertrag"), which, in contrast, would be governed by 145ff BGB. 305 BGB clearly says "standard terms of business apply to the contract only if [this and that condition is met]" which makes it pretty clear that they are separate and independent from the contract. 306 BGB is even more explicit, it says "(1) if, for some reason, standard terms of business are not to be applied to the contract, the contract itself remains valid. (2) in this case, the contract defaults to the standard regulations made by law (3) the contract itself becomes invalid only if it would cause undue hardship even under consideration of (2)"

    This is not the case in civil jurisdictions, where all licences are contracts. I am not even stating something that is controversial in civil jurisdictions, you only have heard the FS side of the story, which applies only to U.S. law.

    What you say is not controversial, it's wrong. Contracts may be involved, yes, but in a completely different way than you think and without practical difference from the way it works in US law.

    It is perfectly permissible to allow commercial uses in exchange for a fee, all CC non-commercial licences allow this!

    No, I repeat, CC ND licenses do not give a permission for commercial use in exchange for a fee. The copyright holder can merely grant permission for commercial use in exchange for a fee in addition to the CC-ND-license. It's not automatic.

    The licensee was in breach of the terms and conditions of the licence by using the work commercially.

    That is correct. Thus, the license became void and standard copyright law applied again, leading to a breach of copyright.

    It is perfectly permissible for the parties to amend the terms and conditions in writing to allow any of the acts restricted by the licence separately (see section 8, c ad d). to give you a personal example, myforthcoming book will be released under a BY-NC-ND licence, I have given the publishers in writing exclusive commercial rights over the work, I will receive payment when they sell the book. This is compatible and in accordance to the licence, it is fine to negotiate fees individually. …If the licensee had come to the author and asked for permission to use the work in exchange of a fee, this would have been perfectly acceptable as long as such an agreement is done in writing.

    That's completely irrelevant. Neither did anyone ask the author for such permission, nor did the author offer such permission (under any terms), nor did he actually grant such permission, nor would he have any obligation to do so. No effect arises from the mere possibility of such a purely fictional agreement.

    The purpose of NC licensing is not to inhibit unauthorised commercial use!

    It doesn't become less false by the addition of the exclamation mark. The purpose of NC licensing *is* exactly to inhibit unauthorised commercial use. What is not inhibited, though, is authorized commercial use. There was no additional license authorizing commercial use in any way.

    PS: I do not have a degree in philosophy. The kind of philosophy I hold is opposed to what is commonly taught in philosophy courses and commonly held by people doing philosophy. What is commonly held and taught is rather the kind of philosophy that you hold (some sort oft justificationist philosophy). I disagee with the spirit of the comic. It doesn't make much sense to speak of probability of something being true based on the education of who says it. Either what is said is true or not. The whole comic is simply a variation of the old argument from authority, repackaged in xkcd humor. What it says is true in some way, but the way you use it is not very clever. In the end you might feel the need to admit that you were the one who was wrong, and then it's not a good feeling to have used this kind of argument from authority. Better use the time to instead work on your arguments. Perhaps I can give the following G.B.Shaw quote as a response to the comic: "The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man" and the following from K.R.Popper: "the growth of knowledge depends entirely on the existence of disagreement" (Popper's emphasis)

    And don't worry. The amount you and I learned in this discussion about the views of each other is certainly a benefit to both of us.

  15. It says “standard terms of business” (“Allgemeine Geschäftsbedingungen”), which are governed by 305ff BGB. It doesn’t say “Contract” (“Vertrag”), which, in contrast, would be governed by 145ff BGB. 305 BGB clearly says “standard terms of business apply to the contract only if [this and that condition is met]”

    See? This is what a legal argument looks like, I am glad you are at least trying. It is wrong however. The entire §305 BGB is precisely about the incorporation of terms into a contract. “Standard terms of business", as the section clearly states, refers to boilerplate terms and conditions. You will notice that there are only two options, they either are incorporated into the contract, or declared invalid (see that validity word again?) I hope you are now willing to accept that validity has a clear and unambiguous meaning in law, seeing as you are now citing from the German Civil Code :)

    There are only two roads for boilerplate terms and conditions, they are either incorporated into a contract (and therefore, becoming a contract), or declared invalid. The “Standard terms of business" have no legal existence other than those two. See §306

    for the legal consequences of non-incorporation.

    I am delighted that you are finally trying to engage in legal analysis instead of making up your own definitions. The BGB will help you with that, now look up validity. I also recommend that you try to find whether there is such a thing as "de facto invalidity".

    "No, I repeat, CC ND licenses do not give a permission for commercial use in exchange for a fee. The copyright holder can merely grant permission for commercial use in exchange for a fee in addition to the CC-ND-license. It’s not automatic."

    I didn't say that it was, but what you wrote made it seem that the entire purpose of the licence is not to allow commercial use in all circumstances. Read again what you wrote. However, if licensors can agree on fees outside of the licence, doesn't that defeat your whole argument that the charging of fees makes the licence invalid? Isn't that what you have been arguing all along?

    If not, then what is your problem with the ruling? You seem to be moving the goalposts at every step. I notice that you have also dropped the claim of invalidity due to attribution.

    "That is correct. Thus, the license became void and standard copyright law applied again, leading to a breach of copyright."

    Not exactly, not all of the licence becomes void. For example, the court has kept the moral right of attribution, because it is inalienable. This is compatible with the law, and does not mean that the licence is invalid.

    "The purpose of NC licensing *is* exactly to inhibit unauthorised commercial use. What is not inhibited, though, is authorized commercial use. There was no additional license authorizing commercial use in any way."

    Sorry, late at night and I mistyped. That should have read "The purpose of the licence is to inhibit unauthorised commercial use." We are in agreement in that point.

    Let me make the following statements to see where we stand:

    – The licence is valid: the court declared it valid, and it produces legal effects.

    – The court found that the licensee was in breach of the licence.

    – The court then awarded damages.

    This is, boiled down to its most basic components, the anatomy of the process. So, why do you keep claiming that the licence is invalid?

  16. See? This is what a legal argument looks like, I am glad you are at least trying.

    I am not making a legal argument here, I am criticizing the claims that you make. I am assuming what you say is right and then showing that it leads to contradiction.

    It is wrong however. The entire §305 BGB is precisely about the incorporation of terms into a contract. "Standard terms of business", as the section clearly states, refers to boilerplate terms and conditions. You will notice that there are only two options, they either are incorporated into the contract, or declared invalid (see that validity word again?)

    305c ff BGB almost all make regulations about whether single conditions of "Standard terms of business" are to be incorporated or not. It's not "there are only two options" at all. And your point was that the license is a contract. This is not true, since even if ALL of the conditions of "Standard terms of business" are declared invalid, or the "Standard terms of business" ar even declared as invalid entirely, then the contract remains intact, the license terms just will not be incorporated into it. This clearly and unambiguously means the license is not a contract.

    I hope you are now willing to accept that validity has a clear and unambiguous meaning in law, seeing as you are now citing from the German Civil Code :)

    First, I never denied law does have a notion of validity. But this is completely irrelevant to what I say. Things (like the things I said about the court) do not become wrong merely because they use words different than law does, or use words not defined by law or not present in law. Second, no, I am not willing to accept that validity has a clear and unambiguous meaning in law. The term is used in different ways even in law, two of which you already mentioned in one of your previous posts. Sure, the way I use the word does not correspond to any of the meanings of law.

    There are only two roads for boilerplate terms and conditions, they are either incorporated into a contract (and therefore, becoming a contract), or declared invalid. The “Standard terms of business" have no legal existence other than those two. See §306 for the legal consequences of non-incorporation.

    No, by being incorporated into the contract, they do not become a contract. They become terms and conditions of the contract ("Vertragsbedingungen"), see 305 BGB. Especially, they do not become contractual obligations, as they could easily be seen if the license itself were a contract.

    I am delighted that you are finally trying to engage in legal analysis instead of making up your own definitions. The BGB will help you with that, now look up validity. I also recommend that you try to find whether there is such a thing as "de facto invalidity".

    I am not "trying to engage in legal analysis", I am merely checking your claims in very simple way, looking at the law that you refer to and seeing if it really says what you claim it says. I am not making up my own definitions and am in fact not using any kind of definitions at all. I am using undefined terms only (what blasphemy!). Yes, there is no such thing as de facto invalidity in the BGB, a fact that is completely irrelevant to this discussion.

    I didn’t say that it was, but what you wrote made it seem that the entire purpose of the licence is not to allow commercial use in all circumstances.

    That is correct. If there is a circumstance in which commercial use is allowed, then it is not authoritzed by this license, but by a separate agreement or license. No such agreement exists in this case.

    However, if licensors can agree on fees outside of the licence, doesn’t that defeat your whole argument that the charging of fees makes the licence invalid? Isn’t that what you have been arguing all along?

    My argument was not that licensors cannot agree on fees. It was that the court decided to grant fees, not damages exceeding the fees usual on the market. Licensor and licensee didn't agree on fees. If they had agreed on fees, but the licensee hadn't paid them, it would have been an entirely different story. THEN the court's decision would have made sense. The decision wouldn't have been based on the CC-BY-NC-ND, though, but on this agreement on fees. The court's decision comes down to incorrectly supposing that making money is the natural purpose of copyright and that thus it can be assumed that the licensor would in principle have been willing to give permission for commercial use for a fee.

    If not, then what is your problem with the ruling? You seem to be moving the goalposts at every step. I notice that you have also dropped the claim of invalidity due to attribution.

    I did not drop any of my claims. I merely stopped repeating them and concentrated on commercial use, since it comes down to the same thing for the others.

    Not exactly, not all of the licence becomes void. For example, the court has kept the moral right of attribution, because it is inalienable. This is compatible with the law, and does not mean that the licence is invalid.

    What the court incorrectly assumed to happen and what actually happened are two different things. The moral right of attribution is not part of the license. It is part of law. I won't discuss whether this right can be waived because this is not relevant here (it can, in certain circumstances). The license has attribution as a condition for use. This is not the same as the moral right of attribution.

    - The licence is valid: the court declared it valid

    – The court found that the licensee was in breach of the licence.

    – The court then awarded damages.

    I especially disagree about the innocent looking ":". The questions "Is the license valid" and "Did the court declare it valid" are completely independent of each other. In the same way, what the court found and awarded is irrelevant to what its decision comes down to; to what the de facto decision is. I can claim "I am going to turn left" and then turn right. I may have found that I have made the decision to turn left but de facto my decision was to turn right.

    This is, boiled down to its most basic components, the anatomy of the process. So, why do you keep claiming that the licence is invalid?

    I said the license was deemed by the court de facto as invalid, at least in part. That is because the court rejected the part of the license that says the license becomes void in its entirety if one of the conditions is violated. Instead it merely considered those parts as void that were directly conflicting with the use by the theater, using a weird argument about a "noncommercial ideology" of the license. Thus it de facto considered the condition voiding the license as invalid.

    The court's argument went on like this:

    – The work was used commercially etc. What does the license say about this?

    – The license says, commercial use etc. are not permitted.

    – What is the damage caused by this? It's that the fee for such use hasn't been paid. It can't be more if noncommercial use is allowed for free than where the work can be licensed only for a fee. So let's look at what is paid on the market for permission for commercial use etc.

    – The market price would be 4500 EUR, not 10000 for such use.

    A correct decision would have went on like this:

    – The work was used commercially etc. What does the license say about this?

    – The license says that it becomes void in this case

    – The contract about use still remains valid, albeit it has to be based now on the rules of law

    – The rules of law state that all use, except very narrow exceptions not relevant here, is permitted only if permission has been granted. There is no permission, since it was revoked when the license was voided.

    – Law was thus violated not merely concerning commercial use etc. but concerning all relevant use in the first place, like publishing, making copies etc.

    – Damages for using work entirely without permission (not merely without permission for commercial use etc.) amount to 10000 EUR.

  17. "I am not making a legal argument here, I am criticizing the claims that you make. I am assuming what you say is right and then showing that it leads to contradiction."

    One step forward, two steps back. Let's try one thing, it seems clear that you did not know any of the legislation until I pointed it out to you. Could it be that maybe, just maybe, there is something you're missing? That you are misreading, misinterpreting, and trying to accommodate the rich literature, case law and doctrine in the subject of obligations? You are ignoring the fact that these articles are all part of Book 2 on Obligations, you have to read and understand the articles as a whole.

    "Second, no, I am not willing to accept that validity has a clear and unambiguous meaning in law. The term is used in different ways even in law, two of which you already mentioned in one of your previous posts. Sure, the way I use the word does not correspond to any of the meanings of law."

    No, validity only has one meaning, that it has legal effects. There are two types of validity, validity of the licence as a whole, or validity of independent clauses. The meaning is the same for both.

    "Yes, there is no such thing as de facto invalidity in the BGB, a fact that is completely irrelevant to this discussion."

    Oh well, I tried. What I find frustrating about this is that the answer is in front of you, you are finally reading the articles, yet even if they clearly say that terms and conditions are an inherent part of the contract, you still refuse to see that. For example, read again §306, the terms and conditions do not have legal effect independent of a contract, which is why the GPL had to be incorporated as a contract.

    "My argument was not that licensors cannot agree on fees. It was that the court decided to grant fees, not damages exceeding the fees usual on the market. Licensor and licensee didn’t agree on fees. If they had agreed on fees, but the licensee hadn’t paid them, it would have been an entirely different story. THEN the court’s decision would have made sense. The decision wouldn’t have been based on the CC-BY-NC-ND, though, but on this agreement on fees. The court’s decision comes down to incorrectly supposing that making money is the natural purpose of copyright and that thus it can be assumed that the licensor would in principle have been willing to give permission for commercial use for a fee."

    You seem to have shifted your position again. What does the above have to do with the validity of the licence? From the above it would be fair to say that you have a problem with the decision itself, not with the licence's validity.

    "What the court incorrectly assumed to happen and what actually happened are two different things. The moral right of attribution is not part of the license. It is part of law. I won’t discuss whether this right can be waived because this is not relevant here (it can, in certain circumstances). "

    The moral right of attribution is also on the licence, and it is part of the law as well. By the way, the above is yet another wrong statement. Why do you insist in making wide-ranging statements about the law when it is obvious that you do not know the law? Attribution (a moral right) cannot be waived in civil law systems this is not an opinion, it is unambiguously stated by law in all droit d'auteur systems. Just as a sample, see the Art 1(2) of the Belgian Copyright Act, which states that:

    "2) The author of a literary or artistic work shall enjoy an inalienable moral right in his work. Overall renunciation of the future exercise of this right shall be null and void. […] An author shall have the right to claim or to refuse authorship of his work."

    Just to give you a sample, the same principle applies in Spanish law (Art 14), Costa Rican law (Art 13), and French law (<span lang="EN-GB" xml:lang="EN-GB">Article L121-1</span>). French law goes as far as to call moral rights as "<span lang="EN-GB" xml:lang="EN-GB">perpetual, inalienable and imprescriptible</span>". Can I please beg you to continue making such statements?

    "The license has attribution as a condition for use. This is not the same as the moral right of attribution."

    They are one and the same in civil law jurisdictions, the right of attribution is established by law, and it is also contained in the licence as an obligation to the licensee. If there is no attribution, the licence is breached, but the court cannot remove the right of attribution because it is inalienable. By the way, I notice that you have moved the goalposts once again. One of your initial reasons for declaring the licence invalid was because the court had not declared void the Attribution part of the licence. Do you retract that statement?

    "In the same way, what the court found and awarded is irrelevant to what its decision comes down to; to what the de facto decision is. I can claim “I am going to turn left” and then turn right. I may have found that I have made the decision to turn left but de facto my decision was to turn right."

    And we're back to square one. How did the court fail to apply the licence? Initially, you said that it had not done it because the void clause was not applied. I have demonstrated that the court had to do that because of moral rights. Then you claimed that somehow the court had given fees, which was not the scope of the licence, but I have also demonstrated that this is irrelevant, all the court had to do was award some damages and this proves the validity and effectiveness of the licence. So, why do you keep claiming that the licence is de facto invalid? You are left with no contradictions!

    "I said the license was deemed by the court de facto as invalid, at least in part. That is because the court rejected the part of the license that says the license becomes void in its entirety if one of the conditions is violated."

    And I mentioned that this is a matter of law, the court could do nothing else. The licence remains valid.

    " Thus it de facto considered the condition voiding the license as invalid."

    And as there is no such legal figure as "de facto invalidity", then the licence remains valid. Here is a thing that may shock you. You can insist all you want that the licence is "de facto invalid", but this is irrelevant because this is a figure that you have invented, does not exist in law, and has no application other than that of an anonymous Internet person claiming that there is such a thing as "de facto invalidity". The legal reality remains that the licence has been declared valid by a court of law.

    "- The market price would be 4500 EUR, not 10000 for such use."

    This is the other point that you still do not get with regards to damages. The market price is irrelevant, plaintiffs all over the world ask for the highest possible damages they can get, the court has discretion in most jurisdictions to accomodate those damages to the facts of the case, including the licence and specific terms and conditions. So, the award of damages is irrelevant to the licence's validity. The fact that damages were awarded in the first place are clear indication that the licence is valid, otherwise the case may have been dismissed.

    "A correct decision would have went on like this:"

    I am sorry to repeat this again, but how do you know what a correct decision would be, if it is clear that you don't know anything about the relevant law? Your list makes no legal sense, it adds steps that are not necessary.

  18. I have to agree with rtc's interpretation of the decision. The court didn't strengthen the legal validity of the this specific Creative Commons license. It weaken it and weaken the copyright holders rights.

    This is what according to the license would have happened:

    The theater infringed on this band's rights.

    According to the license, those rights conceded by the license to the user, the theater, became null.

    General copyright law apply under "All Rights Reserved"

    Damages paid accordingly. Perhaps even the removal of all music used and destruction of any derivative works and any royalties gained by commercialization of those derivatives.

    But this is what happened:

    The theater infringed on this band's rights.

    The court agreed that there was copyright infringement.

    The court disregard the clause about rights granted to them become null.

    So instead of applying normal copyright for the purpose of determining what compensation and penalties would apply, the court just move to the non-commercial clause.

    Damages that were awarded were less that it would have been otherwise.

    This specific Creative Commons license weaken the copyright holder's position!

    Also, contrary to your position, the Non-Commercial clause is used so that the work will never be allowed to exploited for financial gain, not to introduce another step for third parties to negotiate commercial licensing. When I say Non-Commercial I mean it! So in this the theater would also be violating my moral rights.

    The important part about this type of license is the termination of rights and application of normal copyright, this exactly how the GPL works for software.

    If this part of the license is worthless, then the whole license is worthless, because it's what gives power to the Non-Commercial clause.

    Really, what was left after the court ignore the termination section?

    Might as well just create my own disclaimer. It's a vanity license. Hey, look at me, I'm a Creative Commons License! Nothing more.

    I'm afraid that the interpretation of CC-BY-SA would result in the same thing only worse. Not only it would disregard the part about Share-Alike but it would also deny any damages because it was released for "free".

  19. Hi,

    "The theater infringed on this band’s rights."

    Agreed.

    "The court agreed that there was copyright infringement."

    Agreed.

    "The court disregard the clause about rights granted to them become null."

    No, it did not disregard it, it had to leave the right of attribution intact because of moral rights. Courts can partially apply clauses.

    "So instead of applying normal copyright for the purpose of determining what compensation and penalties would apply, the court just move to the non-commercial clause."

    And again, this is not problematic if the licence is also a contract.

    "Damages that were awarded were less that it would have been otherwise."

    As I have mentioned several times, there is no way of knowing this. Unless there were statutory damages, which in Belgian law there are not, then the court has the power to award the damages that it considers appropriate.

    "Also, contrary to your position, the Non-Commercial clause is used so that the work will never be allowed to exploited for financial gain, not to introduce another step for third parties to negotiate commercial licensing. When I say Non-Commercial I mean it! So in this the theater would also be violating my moral rights."

    I agree with you with regards to the NC clause, this is not under discussion, I was responding to something rtc said, which was inaccurate. By the way, there is no such moral right.

    "The important part about this type of license is the termination of rights and application of normal copyright, this exactly how the GPL works for software."

    No, because the licence is a contract a well, you have to stop reading this licence in the same terms as the GPL because the licence is a contract under Belgian law. It is perfectly permissible for the licence to apply specific aspects of the licence if there is a breach.

    "Really, what was left after the court ignore the termination section?"

    Er…. it does not ignore it, it still awards damages.

  20. Could it be that maybe, just maybe, there is something you’re missing? That you are misreading, misinterpreting, and trying to accommodate the rich literature, case law and doctrine in the subject of obligations?

    You argue with mere possibilities. The fact that maybe, maybe the theory of relativity is wrong and something has been missed about it does not mean that the theory of relativity is wrong.

    You are ignoring the fact that these articles are all part of Book 2 on Obligations, you have to read and understand the articles as a whole.

    They are part of Book 2 on Obligations not because they are about obligations THEMSELVES (which they are not), but because they are about conditions that merely RELATE TO and REGULATE contractual obligations ("Gestaltung rechtsgeschäftlicher Schuldverhältnisse durch Allgemeine Geschäftsbedingungen" — Shaping contractual obligations using standard terms of business). The contractual obligations are not in the license itself, they are in the contract about transfer of rights that may exist independent from the license. The license merely shapes them; saying under which circumstances and conditions the rights will be transferred and revoked. The licensee has no obligations; the obligation is the licensor's one to grant the rights as long as the conditions are met.

    No, validity only has one meaning, that it has legal effects. There are two types of validity, validity of the licence as a whole, or validity of independent clauses.

    What you say is contradictory. There cannot exist a notion that is at the same time a property of clauses on the one hand and of license as a whole on the other hand and that still has only one meaning. "The meaning is the same for both." is self-contradictory. It really says "The meaning is the same for both meanings".

    Oh well, I tried. What I find frustrating about this is that the answer is in front of you, you are finally reading the articles, yet even if they clearly say that terms and conditions are an inherent part of the contract, you still refuse to see that. For example, read again §306, the terms and conditions do not have legal effect independent of a contract, which is why the GPL had to be incorporated as a contract.

    You are the one who is not seeing things. The terms and conditions are not an inherent part of the contract. They become part of the contract only if they are accepted (305 BGB "(2) standard terms of business are incorporated into the contract only if [various conditions] and the other party accepts them", emphasized by me). Thus, the GPL does not have to be incorporated into the contract. This is exactly what the GPL itself stresses: "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License." If the GPL is invalid or not accepted, then the contract itself is unaffected; it is merely governed by the standard regulations of copyright then. If the GPL is incorporated, it is incorporated INTO this contact, not "… AS a contract" (emphasized by me).

    You seem to have shifted your position again. What does the above have to do with the validity of the licence? From the above it would be fair to say that you have a problem with the decision itself, not with the licence’s validity.

    That's true. I never tried to say something other than that. It was you who repeatedly claimed that I was trying to say that the license is actually invalid, instead of the court merely erroneously de facto claiming it to be invalid. The license is valid, but has been terminated and thus is void, which the court and you seems not to understand. Admittedly, being terminated and void has the same effects as being invalid in its entirety.

    The moral right of attribution is also on the licence, and it is part of the law as well.

    Nope. The moral right of attribution says that the author has the right to claim to be the author. The license, on the other hand, says the rights it grants are terminated IF attribution is missing. That's two entirely different things.

    Attribution (a moral right) cannot be waived in civil law systems this is not an opinion, it is unambiguously stated by law in all droit d’auteur systems. Just as a sample, see the Art 1(2) of the Belgian Copyright Act, which states that:

    "2) The author of a literary or artistic work shall enjoy an inalienable moral right in his work. Overall renunciation of the future exercise of this right shall be null and void. […] An author shall have the right to claim or to refuse authorship of his work."

    Sigh… Does that say that attribution cannot be waived? No, it doesn't. The moral right of attribution is not the same as the attribution condition of a license. The former says I cannot waive my right to claim to be the author. The latter says if someone uses the work under the license that has attribution as a condition, and he doesn't attribute it to me, then he loses the right to use the work. There is no such thing in copyright law as an obligation for the author to claim authorship or for others to do that. It is trivial that a work can be published anonymously, or an attribution condition of a license can be waived, or even permission can be given to the licensor to claim himself to be the author.

    It is not so trivial (though nothing of this is relevant to this discussion) that the moral right can be waived in certain circumstances. But, though this is controversial, it is possible, too. It can, for example, be waived as part of a ghostwriter contract, despite law saying it's perpetual. That is, one can make a contract with a ghostwriter putting an obligation on him never to disclose his identity.

    the right of attribution is established by law, and it is also contained in the licence as an obligation to the licensee.

    No. As I said, both are completely different things. And the license does not impose an obligation to attribute to the licensee (it cannot, because it is not a contract), the same way as the GPL doesn't impose an obligation to publish source code. Attribution is a condition for the rights granted and they will be terminated in case attribution is missing. The licensor can then sue for copyright violation. He cannot sue for making the attribution, or publishing the source code.

    One of your initial reasons for declaring the licence invalid was because the court had not declared void the Attribution part of the licence. Do you retract that statement?

    No.

    How did the court fail to apply the licence? Initially, you said that it had not done it because the void clause was not applied. I have demonstrated that the court had to do that because of moral rights.

    See above. This again confuses attribution conditions and moral rights.

    Then you claimed that somehow the court had given fees, which was not the scope of the licence, but I have also demonstrated that this is irrelevant, all the court had to do was award some damages and this proves the validity and effectiveness of the licence. So, why do you keep claiming that the licence is de facto invalid? You are left with no contradictions!

    I am left with the court arguing for lower damages using a dubious argument based on "noncommercial ideology". If the license were deemed as de facto valid, the court would have applied the condition that the license is voided, and would henceforth not have referred to the license anymore (like it did arguing with noncommercial ideology), but only to copyright law.

    And as there is no such legal figure as "de facto invalidity", then the licence remains valid.

    I did not claim that there is such a legal figure. I claimed the court de facto judged the license as invalid. This is a figure from logic, if you like. It's saying "x comes down to the same thing as y in all practical respects". For example, "the number that comes next after 2" and "the number that precedes 4" are de facto the same description, even though they look quite different.

    Here is a thing that may shock you. You can insist all you want that the licence is "de facto invalid", but this is irrelevant because this is a figure that you have invented, does not exist in law, and has no application other than that of an anonymous Internet person claiming that there is such a thing as "de facto invalidity".

    Believe it or not, the theory of relativity was not irrelevant just because this theory was invented by some person, did not exist in physics and had no application other than that of an unknown patent clerk claiming that there is such a things as "relativity".

    The legal reality remains that the licence has been declared valid by a court of law.

    I don't care about the legal reality, I only care about reality. And in this reality, the license was judged as invalid (in part).

    So, the award of damages is irrelevant to the licence’s validity. The fact that damages were awarded in the first place are clear indication that the licence is valid, otherwise the case may have been dismissed.

    It's pretty poor that you still don't admit that the license is not a contract, that thus even if the license is invalid entirely, the contract is left intact (albeit governed by standard law), and that thus the court, if it were making the right decision, could not dismiss the case because of that. This point has been made with such a clarity that it seems almost absurd you are still trying to admit it. Well, perhaps it's just a psychological barrier not to uncover your own fallibility in front of an incompenent irrelevant person from the internet…

    One step forward, two steps back. Let’s try one thing, it seems clear that you did not know any of the legislation until I pointed it out to you…. Why do you insist in making wide-ranging statements about the law when it is obvious that you do not know the law? … I am sorry to repeat this again, but how do you know what a correct decision would be, if it is clear that you don’t know anything about the relevant law?

    I speculate, as anybody does — even if he knows about relevant law. There is no way to "know" things in the sense of being able to justify them or know them for sure. The question of truth of a statement is not determined by its justification or where it comes from. It could as well have been generated by tossing a number of dice and picking letters according to the result. The same algorithm could have generated the theory of relativity.

    Your list makes no legal sense, it adds steps that are not necessary.

    I don't care if it makes legal sense as long as it makes sense.

    • OK, I take a night off to watch The Apprentice and have several replies to make :) I have a job and cannot spend too much time in this. Just to finish the licence/contract argument, this is not just an argument about contract formation, Belgian copyright law recognises that all acts of assignment and alienation pertaining a copyright work are to be conducted by written contracts. See Art. 3 of the Belgian Copyright Act, and also Art. 31, where one of the two mentions of license is under the adequately named “Performance Contract” section. Under Belgian copyright law, the licence is a contract. This is the law that the court is applying.

      I have read the ruling again, and I have to admit that I have surprised myself, I got so caught up with your claim of what the ruling said, that I forgot to go back to the source. We have been talking about things that are not even in the ruling.

      The ruling is actually quite simple. It does the following:

      – Section 1 sets out the facts of the case.

      – Section 2 describes the demand. Here is where the claimants make their request for €10,380 EUR based on the Civil Code’s Arts. 1147 and 1149, which are in the section on obligations, the parties consider this a contract as well. Art. 1149 by the way, reads: “The damages owed to the creditor, in general, the loss he has made and the profit which he was denied, with exceptions and modifications below.” The defendants offer a payment of €1,500 EUR.

      – Section 3. Validity and Applicability. The court distils the licence to its 3 main points, attribution, non-commercial use, and no derivatives, and declares that all three have been infringed. The defendants allege good faith (a contractual figure), and mistake (yet another contractual figure), it is clear that the defendants also think of the licence as a contract, as they do not offer copyright defences, but contractual ones. The court declares the licence valid and applicable, and declares that the right of attribution is elementary, and the licensors should have checked the terms and conditions. The court then declares that good faith does not apply in this case.

      – Section 3. Damages. The plaintiffs asked for €10,380 EUR and the defendants offered €1,500. Here is where the court says that the damages required are excessive because the work was released under a “some rights reserved” permissive licence. The court says the following:

      “The court considers that there is a paradox in the attitude of applicants, namely advocating a non-commercial ethic yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam (Belgian collecting agency), and clearly higher to the benefit of 1,500 euros proposed by the defendant.”

      This completely demolishes the arguments made by you before. The court says that the claim is paradoxical, but it says that the 10,000 EUR claim is larger even than that in commercial practice, this is why they reduced the damage, not because of the licence.

      The court then denies a demand by the defendants to publish the judgment in a magazine, and a mention about the provisional enforcement of the ruling.

      – Sentence. The court awards €4.500 EUR plus interests.

      This is what the sentence does. I would be very curious as to why it affects the licence. It applies the licence, I checked again and it does not affect the void clause, and the damages are not reduced because of the licence, but because the claimants asked for too much in the first place.

      • No, the situation is not different under Belgian copyright law than under German copyright law or any other copyright law that employs contracts for transfer of rights. Licenses are not contracts. If a contract exists, it is separate and the license merely is incorporated into it at long as it has not been void. There is no practical difference compared to US law.

        Section 3: Yes, that's the important thing (the rest is irrelevant). And it is inexplicable to me how someone can quote "yet claiming financial compensation at a commercial rate" yet claim it were "larger even than that in commercial practice", how someone can say "Here is where the court says that the damages required are excessive because the work was released under a 'some rights reserved' permissive licence" yet claim "they reduced the damage, not because of the licence"

        Yes, it applies the license. It shouldn't have in that way. It should have said: In these circumstances the license is void. Period. No license there. What do we do without a license.

  21. Skipped the bulk of your long winded distracted circular argumaents. (at least you got the going around in circle part right)

    Bottom line. The court screwed up. Half right and half wrong. They also were distracted by the idea of a copyright license where the holder has not asked for "commercial" (monetary) renumeration. The license terms are beside the fact. All the court should have looked at is:

    1. Is there a valid copyrighted work involved.

    2. did the purported infringer have a (ANY) license to use or distibute the work.

    The answer to 1. is YES! no matter any of the other conditions.

    The answer to 2 is NO.

    It doesn't matter if the general public had a license for non commercial use. The theatre used the work for a commercial purpose and did NOT have a licensse from the copyright holder.

    Damages should have been awarded accordingly.

    So they did recognise that the work was copyrighted and that the copyright holder is netitled to offer a NC license.

    They were wrong in letting that existance of that license haveing any bearing in this instance of copyright violation.

    • Dear Mike,

      The the above post. This is what the court actually says about damages:

      “The court considers that there is a paradox in the attitude of applicants, namely advocating a non-commercial ethic yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam (Belgian collecting agency), and clearly higher to the benefit of 1,500 euros proposed by the defendant.”

      The damages are awarded in accordance to the commercial rate, the confusion so far is that the claimants asked for too much to begin with.

      You say: "They were wrong in letting that existance of that license haveing any bearing in this instance of copyright violation."

      They didn't do that, I am afraid that we have all been discussing rtc's straw man reading of the licence.

      • Mike is perfectly right: They let that existance of that license have a bearing in this instance of copyright violation, which they shouldn't have. They say "Dans le cas présent, il convient d’opter pour une indemnisation globale de 1.500 euros ex aequo et bono par condition non respectée, laquelle prend en considération la démarche particulière adoptée par les demandeurs pour protéger leur droit d’auteur, à savoir l’adoption d’une licence « certains droits réservés »." In short, they consider the license chosen and grant 1,500 EUR per condition violated. They explicitly say they did this because of the license and approach chosen, the "some rights reserved" approach (in contrast to the "all rights reserved" approach).

        This makes sense only if you assume the court incorrectly saw the license as a contract, and each violated condition as a violated obligation that thus causes damages. They were too incompetent to see the real nature of the contract, that licenses are not contracts and exist separate from this contract, that the licensing conditions are not obligations, that all rights were void, that the damages should not depend on the license and that they should have been at the standard commercial rate of 10.000 EUR.

        Is it really so hard for you to admit you are fallbile?

        • They let that existance of that license have a bearing in this instance of copyright violation, which they shouldn’t have.

          Again, why do you claim that they shouldn't have considered the licence? This is what I do not get, the court does not only have the power, but is under an obligation, to consider all the facts of the case when assigning damages. Assignment of damages is not automatic in Belgian law, read again Arts. 1147 and 1149 of the Civil Code. Because the court is assigning damages based on the Belgian Civil Code, it is applying the law and calculating the damages in accordance to the facts of the case and what it considers are the adequate damages arising from those facts.

          The court therefore tells us that the artists claimed damages that were higher than those in commercial practice, so it lowers them. This has no bearing on the effectiveness of the licence.

      • It's not a straw man reading. The license itself is the straw man for the theaters side of the equation.

        Drop the "CC license Non commercial – No derivative works". The theater DID NOT HAVE A NEGOTIATED COMMERCIAL LICENSE. End Of Story.

        That is the unspoken flip side of the "CC license Non commercial – No derivative works" license. If your wish to republish the "work" without changing it and for a non commercial purpose, you do not have to negotiate a license. This license explicity states that you have been grtanted the license under those terms.

        If you are trying to do anything else you have to negotiate a commercial license.

        I a theater company does not understand artistict copyright then it's no wonder so many other people don't get it.

        The theater not only should have payed the original requested ammount but shoulds have been additnally fined for blatant disregard or blantant stupidity. I beleive they are guilty of both.

        • The theater not only should have payed the original requested ammount but shoulds have been additnally fined for blatant disregard or blantant stupidity. I beleive they are guilty of both.

          Mike, read what the court said, not what you think it said. Here it is again:

          “The court considers that there is a paradox in the attitude of applicants, namely advocating a non-commercial ethic yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam (Belgian collecting agency), and clearly higher to the benefit of 1,500 euros proposed by the defendant.”

          This is where I think you are falling for rtc's erroneous reading of the case. The musicians asked for 10k, not based on commercial rates, they just pulled a figure out of the air. This is common practice. The court commented that it was paradoxical that they were asking for rates that were significantly higher than commercial rates, so awarded a reduced amount of damages.

          The damages are independent from the licence.

  22. >>“Damages that were awarded were less that it would have been otherwise.”

    > "As I have mentioned several times, there is no way of knowing this."

    I think the last sentence of opinion of Professor Séverine Dussollier in the article on this website is somewhat ambiguous and probably sparked this discussion: "but demanding a price that would be higher than commercial conditions…". It could mean that the plaintiffs were awarded in damages only what they would have gotten as fee at market conditions. Or it could mean that a commercial fee was selected as basis for a damages ruling meaning the damages were x times the fee (with x > 1). Which is the interpretation I consider more likely.

    I translated the text of the courts decision through an automatic translator but that didn't help since the ambiguity was already in the decision. So I believe Andres is right that you can't conclude anything about the damages from the decision.

    But Andres, what's so difficult to understand about the entirely non-legal words "de facto invalid"? If they had gotten damages awarded that were only as much as a commercial licence fee would have amounted to, the licence would be useless in practice or at least not living up to its intent. And that's what "de facto invalid" is supposed to mean in everyday language.

    • Ok, I translated the questionable paragraph by hand with a little help of google translator and the LEO dictionary. This is what comes out (emphasis added by me):

      The court considers that there is a paradox in the plaintiff's attitude, namely advocating a non-commercial ethics, but claiming monetary compensation at commercial rates, significantly higher than those charged by SABAM and well above the compensation of 1,500 EUR proposed by the defendant.

      So they were not "demanding a price that would be higher than commercial conditions". They were simply demanding the standard compensations that would be awarded for an equivalent "all rights reserved" case. And this is just the point. If the license were applied correctly, it were deemed that it became void (as I hope has become clear by now) by violating its conditions, so all that remains is a copyright violation which is not different from the "all rights reserverd" case. Yet the court incorrectly awarded a compensation "laquelle prend en considération la démarche particulière adoptée par les demandeurs pour protéger leur droit d’auteur, à savoir l’adoption d’une licence « certains droits réservés »" ("which takes into account the particular approach adopted by the plaintiffs to protect their copyright, namely the adoption of a 'some rights reserved' license").

      • No, read the paragraph again. The court states that the plaintiffs claim a rate that is considerably higher than the commercial rate (the SABAM rate). This is why the court reduces the damages, not because of the licence.

        • As you requested, I read the paragraph again and it rather becomes even more clear to me that it says what I claimed it says. It even says "… but claiming monetary compensation at commercial rates, rates significantly higher than those charged by SABAM …" (emphasis added) to avoid this confusion.

          Commercial rates are obviously not SABAM rates. SABAM is a collecting society. I think that "réclamer une indemnisation pécuniaire à un tarif commercial" is pretty clear and unambiguous. It means AT a commercial rate, NOT higher than a commercial rate. You don't have to be a native French speaker to see and understand this.

    • Hi Holger,

      "But Andres, what’s so difficult to understand about the entirely non-legal words “de facto invalid”? If they had gotten damages awarded that were only as much as a commercial licence fee would have amounted to, the licence would be useless in practice or at least not living up to its intent. And that’s what “de facto invalid” is supposed to mean in everyday language."

      I keep insisting on this, because it is indeed an important part of the ruling, and I disagree that it is invalid. I do not like bringing non-legal concepts to a legal discussion, they open us to confusion.

    • Jack – these brilliant arguments completely convinced me. I now think Andres is right. Thanks for opening my eyes to the truth.

  23. rtc,

    As you requested, I read the paragraph again and it rather becomes even more clear to me that it says what I claimed it says. It even says “… but claiming monetary compensation at commercial rates, rates significantly higher than those charged by SABAM …” (emphasis added) to avoid this confusion.

    Commercial rates are obviously not SABAM rates. SABAM is a collecting society. I think that “réclamer une indemnisation pécuniaire à un tarif commercial” is pretty clear and unambiguous. It means AT a commercial rate, NOT higher than a commercial rate. You don’t have to be a native French speaker to see and understand this.

    I am going to assume that you are saying this because you do not know what a collecting society is, otherwise I would suspect that you are purposefully obfuscating the subject. There is a reason why the court mentions Sabam in the same sentence as commercial rates, because it is the job of a collecting agency to charge royalties in the name of a musician, therefore what they charge is the very definition of commercial rates.

    Read the paragraph again, it is as clear as day. The court claims mentions the paradox, but does not mention their decision on damages on this, they say that the claimant has asked for rates that are significantly higher than normal commercial rates. This is a common litigation tactic, as a claimant you usually ask for higher damages, hoping that the court might award them, but also knowing that the court will probably lower them.

    So, the amount of damages has nothing to do with the type of licence, as I have been claiming all along.

    • I am going to assume that you are saying this because you do not know what a collecting society is, otherwise I would suspect that you are purposefully obfuscating the subject.

      I know what such a society is. For music where rights are held by such a society, you can get from the society the right to use the music for a lump sum. In this case, a commercial license exists: You get the right to use the music under the condition that you pay the lump sum.

      For music where rights are not held by such a society, there is no such license. Under those circumstances, commercial rates apply.

      they say that the claimant has asked for rates that are significantly higher than normal commercial rates

      No they say the claimant has asked for compensation that are AT a commercial rate. Period. If anyone is obfuscating the subject it is you by repeatedly making this claim.

  24. No matter how many times you repeat that the licence is not a contract does not make it true. No time to waste here, but I will copy again what the Belgian Act says, you know, the pesky applicable law to this particular case:

    "Art 3. Rights shall be movable, assignable and transferable, in whole or in part in accordance with the rules of the Civil Code. They may be subject to either alienation or a simple or exclusive license.

    With regard to the author, all contracts shall require written form."

    Hint, this article is telling you that all assignation of copyright IS as contract. How much clearer do you want it to be? Similar articles are to be found is most Civil Law jurisdictions.

    I am not going to continue with this Gish Gallop, but the above is more than enough to consider the case closed to this particular part of the discussion.

  25. Again, why do you claim that they shouldn’t have considered the licence? This is what I do not get, the court does not only have the power, but is under an obligation, to consider all the facts of the case when assigning damages.

    I don't say the shouldn't have considered the licence, I said they shouldn't have considered it for the damages. They should have considered only to the point where they found out that it became null and void. From this point the licence is irrelevant because the defendants don't have it.

    The court therefore tells us that the artists claimed damages that were higher than those in commercial practice, so it lowers them. This has no bearing on the effectiveness of the licence.

    Again, the court says that the artists claimed damages that were at commercial rates, not that were higher than commercial practice.

    The license says it becomes void once it is violated. It doesn't say it becomes void only to the extent that it has been violated. The defendants don't have a license, there is none for them. Only if the court sees the licence as de facto invalid it makes sense that it didn't enforce its voidness and didn't bill them for using a work without license, but merely billed them for violating some of its conditions.

    • I don’t say the shouldn’t have considered the licence, I said they shouldn’t have considered it for the damages. They should have considered only to the point where they found out that it became null and void. From this point the licence is irrelevant because the defendants don’t have it.

      Based on what? There is infringement because the three licence elements have been breached, in calculating damages the court has to take all of the particulars of the case, even the licence, into account. This is exactly the same that they would do with "All Rights Reserved" infringement.

      Moreover, it is clear that the court assigned damages based on the commercial rate from Sabena, they clearly state it. This is again what should be expected under All Rights Reserved regime.

      Again, the court says that the artists claimed damages that were at commercial rates, not that were higher than commercial practice.

      No, I will quote what the court said, and continue to quote it, because it is clear as day. The court considers that there is a paradox in the attitude of applicants, namely advocating a non-commercial ethic yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam".

      Sabam is used here to establish the status of the commercial rate. The claimants are pursuing damages that are higher than commercial practice, namely Sabam's rates.

      The license says it becomes void once it is violated. It doesn’t say it becomes void only to the extent that it has been violated. The defendants don’t have a license, there is none for them. Only if the court sees the licence as de facto invalid it makes sense that it didn’t enforce its voidness and didn’t bill them for using a work without license, but merely billed them for violating some of its conditions.

      The court enforces the void clause, it declares infringement occurred, and calculates damages accordingly. Read what the ruling says again. It is clearly stating that the licence has been breached, and then it awards damages. The void clause does not mean that the court has to forget that there was a licence, this is not how damages are calculated, the court is under an obligation to consider that there was a licence.

      • Based on what? There is infringement because the three licence elements have been breached,

        No, there is not. Because the three license elements have been breached the license became void and thus there is no license. So there is infringement because there is no license, not because license elements have been breached.

        The license is not a contract. Not to use the work commercially, not to change it, to attribute the author are not contractual or any other kind of obligations. These are merely conditions for use. If they are breached this is thus not nonobservance of obligations for which damages could be awarded. It is a beach of the conditions for use, which voids the license.

        It was not merely using the work commercially, changing and omitting attribution that was a breach of copyright. Because the license was voided, Defendants had no right to do anything at all. They had no right to publish, or make copies, or anything else the theater did with the work either!

        in calculating damages the court has to take all of the particulars of the case, even the licence, into account.

        Hell you don't get it, the same way the court didn't get it. THERE IS NO LICENSE IN THIS CASE! Any license there might have been is void.

        This is exactly the same that they would do with “All Rights Reserved” infringement.

        Obviously not, because in this case there is no license and no way to argue tree things have been breached.

        Moreover, it is clear that the court assigned damages based on the commercial rate from Sabena, they clearly state it. This is again what should be expected under All Rights Reserved regime.

        No, it is not at all what should be expected. Under All Rights Reserved regime for a work not licensed via Sabam, there is no commercial license. For works license by Sabam, in contrast, there is such a license that grants the right for commercial use in exchange for a lump sum fee. This is a huge difference.

        No, I will quote what the court said, and continue to quote it, because it is clear as day. The court considers that there is a paradox in the attitude of applicants, namely advocating a non-commercial ethic yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam”.

        Sabam is used here to establish the status of the commercial rate. The claimants are pursuing damages that are higher than commercial practice, namely Sabam’s rates.

        "yet claiming financial compensation at a commercial rate" cannot be misunderstood. commercial rates are the damages you get when someone uses the work entirely without permission. Sabam rates is what you get when someone uses a Sabam licensed work, albeit without paying the fee.

        The void clause does not mean that the court has to forget that there was a licence, this is not how damages are calculated, the court is under an obligation to consider that there was a licence.

        Any license the defendants have or had was a void one, meaning the same as no license at all. Void means void. Sorry to say this, but your argument is BS.

  26. To Andres

    They weren't asking for a "License fee", they were asking for "damages".

    The License fee should have been negotiated before the fact not after. They had every right to ask for what they did.

    The judge is wrong! Your refusal to accept that does not make his decision right. The theater asked for Damages the judge said ""no, I'm going to go along with their bullshit argument that the "license" was unclear and ambiguous"".

    THEY DID NOT HAVE A LICENSE! It's basic fundamental of copyright law that if you do not have an expolicit licnse then you do not have any license.

  27. No matter how many times you repeat that the licence is not a contract does not make it true. No time to waste here, but I will copy again what the Belgian Act says, you know, the pesky applicable law to this particular case:

    “Art 3. Rights shall be movable, assignable and transferable, in whole or in part in accordance with the rules of the Civil Code. They may be subject to either alienation or a simple or exclusive license.

    With regard to the author, all contracts shall require written form.”

    Hint, this article is telling you that all assignation of copyright IS as contract.

    I never said something different, on the contrary, this is just what I said explicitly all the time above: The assignation of copyright or transfer of rights is a contract. Not the license/licensing conditions, which are merely incorporated into that contract.

    The written contract would be the statement "This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License …" in case of the GPL, or similar statements in case of CC. Sometimes, the statement will be the mere fact that the license has been added into some directory containing files. It doesn't make the license itself the contract, though.

    Without a contract about transfer of rights, the defendant doesn't have the right to use the music. The license became void. Thus no rights are transferred. The defendant is simply breaching copyright, having no license to do so.

  28. I never said something different, on the contrary, this is just what I said explicitly all the time above: The assignation of copyright or transfer of rights is a contract. Not the license/licensing conditions, which are merely incorporated into that contract.

    Sigh… More obfuscation. The licence is an assignation of rights. This is what is also called the Licence Grant, it has to exist in all licences. It is an act that assigns rights to the licence (e.g. section 3 of BY-NC-ND). The law clearly states that such action must be a contract, hence the licence is a contract because the licence IS an assignation of rights.

    The written contract would be the statement “This program is free software; you can redistribute it and/or modify it under the terms of the GNU General Public License …” in case of the GPL, or similar statements in case of CC. Sometimes, the statement will be the mere fact that the license has been added into some directory containing files. It doesn’t make the license itself the contract, though.

    When presented to contrary evidence, you have reduced your position to the absurdity of stating that the licence contains a contract, but it's not a contract.

  29. No they say the claimant has asked for compensation that are AT a commercial rate. Period. If anyone is obfuscating the subject it is you by repeatedly making this claim.

    Read the paragraph again. They are using Sabam as comparison to determine the common rate, and the court claims that the band has asked for damages that are considerably larger than Sabam's. Why would the court mention Sabam in this paragraph, if not to use them as a measure of what the normal commercial rate is? Their mention here makes no sense whatsoever unless they are use for comparison.

    Regardless of this, the court has the ability to calculate whatever damages it seems fit, it is under no obligation to even follow Sabam's rates. This is the very important point that I have been trying to get across all of the time. There are no statutory damages in Belgian law, so the court can look at all fact to determine damages, including the licence, even if it is void.

    • Read the paragraph again. They are using Sabam as comparison to determine the common rate, and the court claims that the band has asked for damages that are considerably larger than Sabam’s. Why would the court mention Sabam in this paragraph, if not to use them as a measure of what the normal commercial rate is? Their mention here makes no sense whatsoever unless they are use for comparison.

      They mention Sabam simply because Sabam, similar to CC-BY-NC-ND, and unlike "all rights reserved" works not offered by Sabam, grants a license to everyone. In Sabam's case the license is offered in exchange for a fee. In the CC-BY-NC-ND case the license is offered for free. The court essentially assumes CC is something like a noncommercial Sabam and thus make this bogus comparison.

      Regardless of this, the court has the ability to calculate whatever damages it seems fit, it is under no obligation to even follow Sabam’s rates. This is the very important point that I have been trying to get across all of the time. There are no statutory damages in Belgian law, so the court can look at all fact to determine damages, including the licence, even if it is void.

      Again: void means void. A void license obviously cannot have an effect, especially not on damages. It makes no sense to take a license into account that doesn't exist when calculating damages. Why did the court use the CC-BY-NC-ND's conditions, and not the GPL's, or any other license's, for calculating the damages? It would have been the same kind of reasoning, using a license that isn't there.

  30. Sigh… More obfuscation. The licence is an assignation of rights.

    There is two ways the word license is commonly used. If it is used in law, like exclusive or non-exclusive licenses, it means the assignation of rights directly. In this discussion, however, we are talking about licenses meaning licensing conditions, such as the GPL, or CC licenses. The GPL or CC are not licenses in the sense of law. They are boilerplate conditions ("standard terms of business") for such licenses.

    This is what is also called the Licence Grant, it has to exist in all licences. It is an act that assigns rights to the licence (e.g. section 3 of BY-NC-ND). The law clearly states that such action must be a contract, hence the licence is a contract because the licence IS an assignation of rights.

    Yes and no. The transfer of rights, which the law calls licence, might be a contract. The GPL and CC licenses, however, which we are talking about here, are not contracts. They are merely incorporated into the contract.

    In contrast to you, I don't care so much about words. If you wish, say licenses are contracts. Even the GPL and CC. Really. It doesn't matter to me. What matters is:

    – The effect of the whole thing comes down to just about the same as in US law.

    – The contract remains intact if the licence is void, and defaults to standard regulations made by law, which means no use is allowed.

    – the conditions for use do not become obligations. There is not obligation to attribute, no obligation not to use commercially, no obligation not to modify in the CC-BY-NC-ND. There is no obligation to publish the source code in GPL. Doing these things merely voids the license. The licensor has no way to force the licensee to publish the source, as he would if the respective condition were not a condition but an obligation.

    When presented to contrary evidence, you have reduced your position to the absurdity of stating that the licence contains a contract, but it’s not a contract

    No, read what I write, carefully, please. There might be a contract that the license's terms and conditions are incorporated into. Using your terminology, we might perhaps say that there is a contract that contains, in one way or another, the license — which is just about the opposite of "licence contains a contract".

  31. Hell you don’t get it, the same way the court didn’t get it. THERE IS NO LICENSE IN THIS CASE! Any license there might have been is void.

    The court gets it. The parties get it, I get it, what you have to ask yourself is… why can't you?

    I don't have much time to dedicate to this, but this is at the heart of the debate. You keep claiming that you do not care about words, but then the whole argument rests on words. You seem completely hung up on the words in the void clause, and you are willing to ignore all of the other aspects as long as you get to continue pounding on this one piece of the licence to insist that the licence is de facto invalid, which is a figure you have invented. You are willing to ignore the law that the court had to apply in order to respond to your narrow reading of the licence.

    The argument is simple, so I will restate it. The licence is a contract in Belgium (it is an assignation of rights). The claimants asks for damages in accordance to the law of obligations in the Belgian Civil Code. The defendants argue error and good faith, both contractual defences. Before applying the licence, the court asks whether or not it is a valid licence (read valid contract), and it finds that it is. Therefore, it applies the licence. Because the defendant breached the terms of the contract, the void clause applies, so the court can assign damages for infringement.

    So far, so good. This next step is the one you are missing. The void clause does not mean that the licence never existed, it simply allows the claimant to receive damages for infringement. What it does is not void the entire licence and destroy it, it simply removes the licence grant. The court can still consider the licence terms and conditions when calculating damages and in its sentence. It has not only that power, it is under an obligation to consider all of the facts of the case, including the licence that gave rise to the conflict.

    Words are important. The fact that the licence is valid means that it has legal effects, one of which is to serve in the calculation of damages. The court does precisely that. I ask you to provide evidence that the court is forbidden from looking at the licence even after the breach has been proved. Good luck with that.

    Moreover, the court clearly states that the claimants have asked for too much money, this is why it cites Sabena as a comparison. The court can do that. The court finds it paradoxical that the claimants have asked for too much money while they released the work under "some rights reserved", this perfectly compatible with the law and in no way relates and/or affects to the void clause. The void clause has been adequately applied because the court is declaring damages in the case.

    The court then decides on a sum that is equal to what is found in commercial practice, 4,500 plus interests.

    The court acted appropriately, it can calculate damages in whatever way it sees fit, even considering a contract which you claim has no legal effect, yet it does.

    • I don’t have much time to dedicate to this, but this is at the heart of the debate. You keep claiming that you do not care about words, but then the whole argument rests on words. You seem completely hung up on the words in the void clause, and you are willing to ignore all of the other aspects as long as you get to continue pounding on this one piece of the licence to insist that the licence is de facto invalid, which is a figure you have invented.

      You are confusing two things here. A correct decision would have judged the license as valid, and thus void under these circumstances, which means the same as it being invalid in its entirety.

      The incorrect decision of the court was to de facto judge the license as invalid in part: The part that concerned that the licnese became void. Because the court simply ignored it.

      The argument is simple, so I will restate it. The licence is a contract in Belgium (it is an assignation of rights).

      The CC-BY-NC-ND is not a contract, nor in Belgium nor anywhere else. It is the boilerplate conditions that apply to the contract that assigns the rights.

      The claimants asks for damages in accordance to the law of obligations in the Belgian Civil Code.

      No obligation exists for the defendant. Hence, in a correct decision, there cannot be damages that are based on the law of obligations. There can only be damages based on copyright law.

      Before applying the licence, the court asks whether or not it is a valid licence (read valid contract), and it finds that it is. Therefore, it applies the licence. Because the defendant breached the terms of the contract, the void clause applies, so the court can assign damages for infringement.

      Yes, the court applied the void clause but, but in a completely wrong way. The court should have found that the license has is void and thus does not have any bearing at all on the case.

      So far, so good. This next step is the one you are missing. The void clause does not mean that the licence never existed, it simply allows the claimant to receive damages for infringement.

      No. The void clause means void. No license! It is very simple.

      What it does is not void the entire licence and destroy it, it simply removes the licence grant.

      That's the same!

      The court can still consider the licence terms and conditions when calculating damages and in its sentence.

      No, because there is no license. A license that isn't there cannot have an impact on the damages.

      It has not only that power, it is under an obligation to consider all of the facts of the case, including the licence that gave rise to the conflict.

      There is no license. None of the facts of the case involves a license. The court has invented a license that is not there. It is as absurd as if the court would refer in the same way to the CC-BY-NC-ND license in a "all rights reserved" case. In both cases no license exists. It's just more obvious in the latter case.

      Words are important. The fact that the licence is valid means that it has legal effects, one of which is to serve in the calculation of damages.

      The only effect that the license has here is to cause its own voidness.

      The court does precisely that. I ask you to provide evidence that the court is forbidden from looking at the licence even after the breach has been proved. Good luck with that.

      No, the court would have to provide evidence how a license that is void and thus completely irrelevant for the case can have any effect on damages.

      Moreover, the court clearly states that the claimants have asked for too much money, this is why it cites Sabena as a comparison. The court can do that. The court finds it paradoxical that the claimants have asked for too much money while they released the work under "some rights reserved"

      And this is the point. The court simply fucked up. It discriminated the plaintiffs simply for using CC-BY-NC-ND, despite the fact that this license does not have anything whatsoever to do with the case.

      The court acted appropriately, it can calculate damages in whatever way it sees fit, even considering a contract which you claim has no legal effect, yet it does.

      I see you seem not willing to understand.

  32. Yes, the court applied the void clause but, but in a completely wrong way. The court should have found that the license has is void and thus does not have any bearing at all on the case.

    I will continue to concentrate on this one point, because it lies at the heart of the discussion. Who are you to say what constitutes a correct application of the void clause? Can you please provide any evidence that your interpretation is correct?

    Think about it, it is an absurd position. You are claiming that once infringement is declared the court has to magically forget that there was a licence to begin with, this is not how it works. Moreover, the court has to consider that this is a contract (no matter how many times you say that it is not, Art. 3 of the Belgian Copyright Act is unambiguous in this regard). Not only that, both parties are treating the licence as a contract, so the court is under an obligation to consider all of the aspects that the parties brought to the table. This is basic civil procedure, the court cannot ignore claims made by the parties.

    The void clause does not mean what you think it means, it does not erase the licence from existence. It simply removes the licence grant so that infringement can be declared. The court can consider it as evidence to calculate damages. Why is this so difficult to understand?

    The law does not operate like computer programming!

    The key is here, I asked you to provide evidence that the court cannot consider the licence after applying the void clause. You failed to do so and said:

    No, the court would have to provide evidence how a license that is void and thus completely irrelevant for the case can have any effect on damages.

    Your entire argument rests on the statement that the court is forbidden from considering the licence. I ask you again, can you provide any legal evidence that this is the case? Can you cite any case and/or piece of legislation that forbids a court from looking at a licence after a void clause has been declared? Anything at all.

    And this is the point. The court simply fucked up. It discriminated the plaintiffs simply for using CC-BY-NC-ND, despite the fact that this license does not have anything whatsoever to do with the case.

    No, no, no, no. Read the paragraph again. It is not discriminating anyone, it is calculating damages using Sabena as a benchmark, which is the same action they would take if there was no CC licence involved.

  33. Read the paragraph again. It is not discriminating anyone, it is calculating damages using Sabena as a benchmark, which is the same action they would take if there was no CC licence involved.

    THIS is the point that lies at the heart of the discussion. It depends on how the sentence "yet claiming financial compensation at a commercial rate, a rate significantly higher than that charged by Sabam" is interpreted. Judging by these words I would concurr with rtc. The words indictate that the court did not give them the commercial rate but the significantly lower rates charged by Sabam. That those rates are lower than standard commercial rates can be directly infered from this sentence.

    To make really sure I put that sentence before someone uninvolved in this discussion and he immediately confirmed rtc's interpretation.

    On the other hand the question is what is meant by commercial rates? If it means the price of a piece of music specially and exclusively made for the theater, then the court is correct in reducing the damages since the theater didn't get any exclusivity.

    But if commercial rate means what someone would have to pay for an already existing song for which he doesn't get an exclusive licence, then that is excactly what the court should have to set their eye on and not lowered it.

    • On the other hand the question is what is meant by commercial rates? If it means the price of a piece of music specially and exclusively made for the theater, then the court is correct in reducing the damages since the theater didn’t get any exclusivity.

      Well, how could it be that someone who has an exclusive license of which he violated some parts of (presumably without it to become void, which would not be a reasonable condition for exclusive licensing) needs to pay more damages than someone who has no license at all? And what is so specifically commercial about an exclusive license? If someone says "commercial" the first thing that comes into my mind is music sold in store, not exclusive licensing

      I think the "commercial rates" can be understood in a reasonable way if it means "all rights reserved", without Sabam or other license.

      • The difference being that in the exclusive case the author promised not to use it anywhere else. In this case the authors already used the music elsewhere (i.e as a free music download for non-commercial use), so it is literally impossible to give an exclusive licence.

        Remember that the 10000 Euros talked about are not some fixed figure the court determined by consulting an expert. It is what the band or their laywer demanded, which may well be the commercial rate for an exclusive work (or at least an inflated figure for a non-exclusive work). The court just confirmed that the price tag was in the range of commercial works, it didn't say at what end.

        So the 10000 might be the correct value of this song, it might as easily be an inflated value, and it usually is.

    • Dear Holger,

      Interesting interpretation. The problem we have at the moment is that the court does not really define commercial rates, and the concept is not defined by the law either. It is therefore left to us to see what they meant here, and there is scope for ambiguity. My interpretation from reading the French and from my own translation is that they are using Sabam to determine what is the common commercial rate, otherwise, I see no reason why they would even mention Sabam in this sentence.

      Thanks for the contribution. My argument is that even if we consider that the court reduced damages because of the use of the CC licence, this is not incompatible with the licence itself. As I have mentioned before, the court could have reached the same decision with an All Rights Reserved licence, as damages are not set by the law (i.e. statutory damages). We would have to conduct a survey of awarded damages in similar situations to see what this court and others have awarded in the past.

      • <cite>they are using Sabam to determine what is the common commercial rate, otherwise, I see no reason why they would even mention Sabam in this sentence. </cite>

        The court itself(!) distinguishes between commercial rates and Sabam rates in this sentence (assuming the translation of the sentence is correct)

        So why does the court mention Sabam? The reason might be that it is a lower bound for the value of commercial music. I am pretty sure that if you order a piece of music from an artist, specially crafted to the occassion, you pay much more than the Sabam rates (i.e. tailored versus ready-made). And that is pretty common in film music and advertisement.

        <cite>My argument is that even if we consider that the court reduced damages because of the use of the CC licence, this is not incompatible with the licence itself</cite>

        While the court has the power to set damages it is by no means infallible and lots of appeals are because of too little or too much damages. Lets assume the theater only breached one condition of the licence, i.e. commercial use. Lets also assume that the Sabam rate would be those 1500 Euro the theater offered (actually we don't know the Sabam rate at all!). Then the court would have set damages to 1500 Euro (if it followed the same reasoning as it did now). In that case the CC licence would be useless as you could use any CC licenced song just like a Sabam song and would have to pay only the sabam rate, if they protested. It would be like shoplifting where you only had to pay the normal price if you get caught.

        Now this is all just speculation since we don't know the Sabam rate. Sabam might be charging 4500 Euro, in which case the damages are definitely too low. Or the Sabam rate is 1500, then the courts calculation was only acceptable because the theater breached more than one condition. Or the Sabam rate is lower than 1500 Euro in which case the damages are a real deterrent and the licence works.

        • So why does the court mention Sabam? The reason might be that it is a lower bound for the value of commercial music. I am pretty sure that if you order a piece of music from an artist, specially crafted to the occassion, you pay much more than the Sabam rates (i.e. tailored versus ready-made). And that is pretty common in film music and advertisement.

          I disagree, in my experience individual authors get less than collecting agencies because of the disadvantageous negotiating position. To give a personal example, I get more from publishers through the Copyright Licensing Agency in the UK, than I would on my own.

          Lets also assume that the Sabam rate would be those 1500 Euro the theater offered (actually we don’t know the Sabam rate at all!).

          This, I think, is the key to the entire paragraph in the decision. I see no reason whatsoever why the court would mention Sabam unless it was using it to calculate commercial rates, their mention in this context makes no sense unless it is used for comparison. I have scoured Sabam's website for clues, but only found yearly accumulated reports. This also leads me to believe that the court is already familiar with Sabam's rates. This is the other reason why I believe the court is using Sabam as an example of commercial rates, as nowhere else in the ruling there is any indication of how the court is calculating normal rates.

  34. Andres,

    it is typical for a justificationist, once his position has been destroyed, to ask for evidence or other justifications. There is no such thing as evidence. Lack of evidence does not mean lack of truth.

    The German court cases you cited understood and applied the void clause in the correct way. Belgian law is not much different from German law in this respect. You refuse to accept the nature of the contract that is involved and that the license is not a contract, but merely incorporated into the contract, and that the result is the same as the non-contract US view in all practical respects. That's your right, you can have your idiosyncratic view of matters. It may also be true that law has a long way to go to reach the level of rationality prevalent in computer programming.

    Calculating damages using Sabam as a benchmark is correct only if there is a license similar to the Sabam one. If there were no license at all, they would have granted damages at commercial rates, 10000 in this case.

    The point has been made as clearly as it can. We won't agree on these points. Let's see if this incompetent 5-page decision will be overturned in the next instance.

    • it is typical for a justificationist, once his position has been destroyed, to ask for evidence or other justifications. There is no such thing as evidence. Lack of evidence does not mean lack of truth.

      You are making a positive assertion, you are claiming that once a court has invoked the void clause, it cannot consider the licence again at all. I am just asking for evidence for this statement, why is the court forbidden from considering the facts?

      The German court cases you cited understood and applied the void clause in the correct way.

      You keep stating "correct way" of looking at th void clause, when there is no such legal requirement. Check out one of the other German GPL cases which define what is the effect of the void clause:

      "The Panel is of the opinion that GPL No. 4, which provides for an automatic reversal of rights when an infringement of the code of behavior as set forth in No. 2 occurs, does not inadequately discriminate the contractual partner of the user of the standard business conditions."

      Firstly, the court is still considering the licence a contract (all of the cases do). What is important to note here is that in this case the court itself is telling you the legal effect. It does not destroy the licence, it simply implies an "automatic reversal of rights". This is exactly what the Belgian court does, otherwise there would not be damages. What you are claiming is that once this is declared, the court is not allowed to look at the licence, which is not true. In fact, check out the GPL case cited above. After declaring the automatic reversal of rights, the court is under the obligation of considering some of the other clauses in the ruling, because the defendants have argued that the void clause itself may be invalid, as well as the copyleft clause. The court goes therefore into a lenghty discussion of that, including a detailed reading of the licence.

      This is exactly the same as happened in the Belgian case, the court has the power, and even the obligation, to consider the licence in their decision. You need to provide evidence that the court is not allowed to look at the licence ever again, which is what you are asking them to do.

      Calculating damages using Sabam as a benchmark is correct only if there is a license similar to the Sabam one. If there were no license at all, they would have granted damages at commercial rates, 10000 in this case.

      No, they are using Sabam as an example of what constitute commercial rates. Nowhere do we get an indication that 10,000 EUR is the going commercial rate, that is the amount that the claimants asked for. As I have mentioned repeatedly, claimants do this all the time, they ask for more money as a litigation tactic.

      • “The Panel is of the opinion that GPL No. 4, which provides for an automatic reversal of rights when an infringement of the code of behavior as set forth in No. 2 occurs, does not inadequately discriminate the contractual partner of the user of the standard business conditions.”

        Andre, a GPL violation under these circumstances is completely different.

        Yes it is possible to violate "part " of the GPL and not violate another. In many instances this is what has happened and often the resolution is resolving the violation so the infringer is no longer in violation of the GPL grant.

        In such a case where the infringer has attemptedto follow the license under circumstance that the license applies to , then I would agree with your that the licnese then takes on the attributes of a contract and should be resolved based on that viewpoint.

        However, the theater , at no point, attempted to follow the license. That makes this a simple case of theft. The CC license never applied, nno contract was created and therefore has no bearing on the resolution of the infringement.

        • Hi Mike,

          There is no such thing as copyright theft, the term is copyright infringement for a reason. The work is licensed, so the CC licence applies until there is a breach of the licence. If there is a breach, then the licence grant is void (section 3 of the BY-NC-ND licence).

          The licence itself says which sections do not apply in case of breach of licence. Section 79a) reads "Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License."

          This could not be clearer.

        • Yes, Andre they infringed the copyright. That IS the corect term for the violation of copyright under the law. We don't dispute that.

          What we do dispute is your , and the courts, insistance that the CC license constsituted a contract that was violated as a the basis for the rest of the decision process.

          The THEFT of the copyrighted material was the act that violated the license. I am not using THEFT as a description of the crime, I am using it as a description of the act that violated the copyright. The only reason a copyright violation is not legally termed a theft is because a LEGAL theft only occurs if you remove the property from the posession of the owner and take posession of it yourself.

          Copyright law exists becasue by definition a copyright violation fails the LEGAL definition of Theft.

          However, they still did not violate a "contract" based on the license because under the circumstances they did not have a contract as they never had a valid licese to begin with.

          A contract is a legal AGREEMENT between two parties. The CC license is ONLY an agreement to the parties included under the agreemente. The theater as a commercial entity was never a valid party to the CC agreement and as such has no standin under that license.

          They were required to negotiate a seperate license.

          Just like any other business can enter into one agreement with a business partner for a particular service, product or property and enter into a completely different with a different business partner.

          If you and I have a contract, it applies only to you and I. Just because rtc likes the terms and wants the same terms does not mean he can automatically assume them and expect me to be bound by them. He has to negotiate his own contract.

          The CC license did not apply.

        • I think that you are misunderstanding the effect of a licence for a copyright work, particularly about boilerplate licences.

          The work is released under a licence, so anyone who wants to use the work must comply with the terms and conditions of said licence. If a user does not comply, they would be in breach of the licence. Here is where the licence void clause kicks in. The fact that the user ignored the licence does not affect the terms of the licence in the slightest.

          Think for example of any software you download. Imagine that software has a clickwrap licence, and yet you ignore it. That does not mean that the clickwrap does not apply, it simply means that the licence grant is void, and therefore there is infringing.

          In this case, the licence still exists, and therefore must be applied.

  35. Firstly, the court is still considering the licence a contract (all of the cases do). What is important to note here is that in this case the court itself is telling you the legal effect. It does not destroy the licence, it simply implies an “automatic reversal of rights”.

    The license is not the contract, it is merely incorporated into the contract. The reversal of rights is the same as the destruction of the license. There is no practical difference to what happens under US law.

    This is exactly what the Belgian court does, otherwise there would not be damages. What you are claiming is that once this is declared, the court is not allowed to look at the licence, which is not true. In fact, check out the GPL case cited above. After declaring the automatic reversal of rights, the court is under the obligation of considering some of the other clauses in the ruling, because the defendants have argued that the void clause itself may be invalid, as well as the copyleft clause. The court goes therefore into a lenghty discussion of that, including a detailed reading of the licence.

    And there is no problem with this and it doesn't contradict what I said, because the question of the validity of the clauses are all relevant for the question whether the license is void or not. As soon as it is void, however, it is void. A void license cannot be relevant to the case.

    Assume a fictional situation in which a license permitting non-military, but commercial use, modification and omission of attribution has been granted at no cost in addition to the CC-BY-NC-ND. For the CC-BY-NC-ND, the situation is the same in this case and according to your line of argument, the court should grant the same damages because some of the conditions of the CC-BY-NC-ND were breached. This is the consequence if one sees the license itself as a contract and its conditions as obligations. In reality, however, the license was merely void, no obligations were violated as there are none for the defendant, since the license is not a contract. There is breach of conditions, but no copyright violation, because the other license still would have permitted this kind of use.

    BTW, if the license were a contract, the German court would not have checked the termination and copyleft conditions in this way. Law only allows "standard terms of business" to be checked for validity in this way.

    This is exactly the same as happened in the Belgian case, the court has the power, and even the obligation, to consider the licence in their decision. You need to provide evidence that the court is not allowed to look at the licence ever again, which is what you are asking them to do.

    No evidence exists and none is necessary. The court is not allowed to look at the CC-BY-NC-ND for the same reason that it isn't allowed to look at it in a case about a work declared as "all rights reserved" and not licensed under any conditions.

    Your line of thinking goes like this: If I use a work that has a CC-BY license, but I do not attribute, isn't the damage much less than if it were not CC-BY, but all rights reserved? The answer is no; the damage is the same: in both cases there no license. And this is the point. The GPLv3, by the way, has changed this, because the usual voidness effect can indeed be considered overly harsh. The GPLv3 has for this reason introduced a more sophisticated termination condition under section 8, to protect the licensee from excessive compensation claims, especially in case of breaching the licensing terms accidentally.

    • The license is not the contract, it is merely incorporated into the contract. The reversal of rights is the same as the destruction of the license. There is no practical difference to what happens under US law.

      I notice you did not respond to the main point I was making. Read the case again, the court declares a reversal of rights, and after that, it spends pages still dealing with the licence. You have not provided any reason why a court should fail to consider a licence after a void clause has been invoked, even when I have offered several examples when the contrary is true. Why would the Munich court in the cited GPL case bother to go through the clauses after it had declared the licence void? There is no legal imperative that forbids a court from considering the void licence in their ruling if it is relevant to the decision.

      And there is no problem with this and it doesn’t contradict what I said, because the question of the validity of the clauses are all relevant for the question whether the license is void or not. As soon as it is void, however, it is void. A void license cannot be relevant to the case.

      No, the void clause only has one effect, it reverts rights to full copyright, it does not erase the licence from existence. If relevant, the court is under an obligation to consider the licence. Why is this simple legal concept so hard to understand? You keep insisting that the court cannot consider the licence after the void clause, but you have yet to give me a simple valid legal argument to support that statement.

      I ask once more, can you give me any legal reason why a court cannot consider the licence after the void clause has been claimed, if it is relevant to the case?

      BTW, if the license were a contract, the German court would not have checked the termination and copyleft conditions in this way. Law only allows “standard terms of business” to be checked for validity in this way.

      That does not make any legal sense, you will have to support that statement.

      No evidence exists and none is necessary. The court is not allowed to look at the CC-BY-NC-ND for the same reason that it isn’t allowed to look at it in a case about a work declared as “all rights reserved” and not licensed under any conditions.

      That sentence completely fails to consider that the licence is part of the facts of this case, not only that, it is an integral part of the case. You continue to state that the court is forbidden to look at the licence again. Please, why is it forbidden from doing so? What article of the Civil Code and/or the Copyright Act forbids them from looking at the licence? They HAVE to look at all of the relevant facts.

      Your line of thinking goes like this: If I use a work that has a CC-BY license, but I do not attribute, isn’t the damage much less than if it were not CC-BY, but all rights reserved?

      No, you keep missing the point. The whole point of the argument is that courts can look at all of the facts of a case when enforcing a licence. This includes the wording of the licence itself. I do not make categorical statements about future cases, and in unknown jurisdictions, as the facts of the case may be different.

      • Again Andre, there was no "void clause" as there was never any actual license applciable to the Theatere. That is the basic mistake the court made.

        The court simply had to determine that the theatre did not have a license for the copyrighted work and proceed from there.

        "the argument is that courts can look at all of the facts of a case when enforcing a licence. This includes the wording of the licence itself. "

        The CC license did exist. That is a fact. It is an irrelevent fact in this case. It had no bearing on the copyright violation and therefore had no reason to be considered once it was determined that it did not apply instead of determining that it was not correctly complied with. The theater is a commercial entity that could not comply with the CC license under any circumstance. It needed to negotiate a seperate, commercial license with the original copyright holder.

  36. The licence applies. The court is under an obligation to read the licence because the work is licensed under that licence. The licence exists for all users, ignorance of the licence does not invalidate the licence.

    Why is the licence important? If the musicians had used CC-BY, then the case would not have been able to go ahead, there would be no infringement. This is why the terms and conditions of the licence are so important in this case.

    • Andre, you seem to be arguing on the basis that a work can only be released under ONE license. I';m sure you know that's not true. Are you just forgetting to consider that fact.

      The license the work was released under did not grant any rights/contract/license to the theater.

      They needed to negotiate a second/(3rd/4th/Trillionth?) license to the work that applied to them and would grant them rights/contract.

      The jude appeasrs to be operating under the same misguided conception.

      • Dear Mike,

        Could I ask for something before we continue? My name is Andres, not Andre. Sorry to be a bit of a pedant, but this is starting to annoy me a bit, as my name is in all of my replies :)

        Anyway, you say:

        Andre, you seem to be arguing on the basis that a work can only be released under ONE license. I’;m sure you know that’s not true. Are you just forgetting to consider that fact.

        I have no idea what you mean by that, of course works can be released under different licences for different circumstances, but in this case the band released the work only under a CC licence.

        The license the work was released under did not grant any rights/contract/license to the theater.

        No, the works was released under a boilerplate CC licence for the entire world. All users of the work are granted rights if they comply with the terms and conditions. The theatre could have complied with the terms of the licence, and therefore it would not have been infringing. However, the theatre was in breach of the attribution and the non-commercial clauses, and therefore was in breach of the licence.

        They needed to negotiate a second/(3rd/4th/Trillionth?) license to the work that applied to them and would grant them rights/contract.

        True, they could have negotiated rights individually, but they didn't. They could also have complied with the terms of the licence, but they didn't. I fail to see the relevance of this.

        The jude appeasrs to be operating under the same misguided conception.

        As I still cannot see what the problem is, or why you think that the licence does not apply in this case, then I believe the court was more than correct in their reading.

  37. Andres,

    The work is licensed, so the CC licence applies until there is a breach of the licence. If there is a breach, then the licence grant is void (section 3 of the BY-NC-ND licence).

    The licence itself says which sections do not apply in case of breach of licence. Section 79a) reads “Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.”

    This could not be clearer.

    I can agree with this. Now we need to agree that section 1, 2, 5, 6, 7 and 8 do not grant any permission concerning copyright law. They are only definitions, fair dealing rights, termination, disclaimers, severability clause etc. They are purely technical and are probably mostly irrelevant — they mostly stress what probably holds according to law anyway.

    What is important is that sections 3 and 4, which grant rights under some conditions, are not among those sections that will survive (and not in part, either) a termination of the License.

    Mike,

    The CC license did exist. That is a fact. It is an irrelevent fact in this case. It had no bearing on the copyright violation and therefore had no reason to be considered once it was determined that it did not apply instead of determining that it was not correctly complied with.

    It did not exist after the violation. Whether it ever existed or not, depends on the legal system. Under US law, licenses are implemented as unilateral permissions weaving some part of the author's exclusive rights under copyright. There what you say is correct. Under Civil Law jurisdictions, licenses are implemented as contracts transferring rights under certain conditions. But that's completely theoretical. What is important is that both views come down to the same thing in all practical respects: Not to have a permission to use the work under the conditions, and to have it, but to lose it once you violate one of the conditions, has the same effect with respect to infringing use.

    • I can agree with this. Now we need to agree that section 1, 2, 5, 6, 7 and 8 do not grant any permission concerning copyright law. They are only definitions, fair dealing rights, termination, disclaimers, severability clause etc. They are purely technical and are probably mostly irrelevant — they mostly stress what probably holds according to law anyway.

      Well, this is a start. All throughout your argument has been that the void clause destroys the entire licence, while I have claimed that it mostly affects the licence grant, namely, section 3. Read the above thread and you will find that this is what I say repeatedly.

      As for the importance of these clauses, this is irrelevant for the present argument. The licence retains its validity even after termination, which is another of your criticisms of the ruling. As you can see, the licence itself states that it remains valid.

      What is important is that sections 3 and 4, which grant rights under some conditions, are not among those sections that will survive (and not in part, either) a termination of the License.

      And I have never claimed otherwise, my claim has always been that parts of the licence can still be read and considered by the courts even after termination. We are both in agreement here.

      • As for the importance of these clauses, this is irrelevant for the present argument. The licence retains its validity even after termination, which is another of your criticisms of the ruling. As you can see, the licence itself states that it remains valid.

        No. The relevant part of the license, ie., the copyright permissions (what one usually means when one says "license"), are precisely sections 3 and 4, and these do not remain valid. Yet, the court refers to sections 3 and 4 (and to those sections only) when calculating the damages, which are void. He does not refer to 1, 2, 5, 6, 7 or 8, which remain valid (and probably are irrelevant, as they mostly hold by law anyway).

        And I have never claimed otherwise, my claim has always been that parts of the licence can still be read and considered by the courts even after termination. We are both in agreement here.

        The key disagreement is about sections 3 and 4: Can the court still read sections 3 and 4 and consider them even after they have become void? I think this is clearly not true and if the court still does that, it has de facto judged the termination clause to be invalid, saying that section 2 and 3 remain valid in part, too, in conflict with what the license says.

        • o. The relevant part of the license, ie., the copyright permissions (what one usually means when one says “license”), are precisely sections 3 and 4, and these do not remain valid. Yet, the court refers to sections 3 and 4 (and to those sections only) when calculating the damages, which are void. He does not refer to 1, 2, 5, 6, 7 or 8, which remain valid (and probably are irrelevant, as they mostly hold by law anyway).

          I do not understand what is the argument now. I have gone back and traced our discussion, and it is evident that your argument was that the licence is invalid because of the void clause, and that the court made a mistake when they read the licence after applying the void clause. My argument has always been that the court was justified in applying the licence even after the infringement had been declared.

          So, now here we have evidence that you were wrong in your claim that the licence was ocmpletely destroyed, but it is also clear that parts of the licence are left intact. So, the court has the power to read the terms and conditions of the licence to determine if the licence has been breached (which it did), but also has the obligation to consider the existence of the licence in their calculations of damages.

          By you agreeing that portions of the licence survive the void clause, you have to agree with my point, which has always been that the licence is valid, and that the ruling is consistent both with the law and with the licence. You have moved the goalposts so much that I no longer have any idea what your argument is, and why it is that you doggedly continue to insist that the licence is invalid.

          The key disagreement is about sections 3 and 4: Can the court still read sections 3 and 4 and consider them even after they have become void? I think this is clearly not true and if the court still does that, it has de facto judged the termination clause to be invalid, saying that section 2 and 3 remain valid in part, too, in conflict with what the license says.

          Of course it can if it is still relevant to the ruling. The court had to read the licence as a whole in order to determine if the terms had been breached. You are somewhow asking the court to determine that there had been infringement before reading sections 3 and 4, which is ridiculous. Then it calculated damages, and did so by using all elements it had to make the calculation.

          Here is what the court did, and why I insist that this is a good ruling. The musicians sued for licence breach, asking for 10,000 EUR. The court looked at the licence, declared it valid and applicable to the case, read the terms and conditions, found that the theatre was in breach of these, then applied the termination clause. This allowed the court to declare that there was copyright infringement, which allowed them to award damages. The court then considered that the claimants were asking for too much, and lowered the damages to 3,000 EUR.

          My question is, why do you still insist that there is a problem with the above ruling?

  38. My argument has always been that the court was justified in applying the licence even after the infringement had been declared.

    No, because no license exists after that point.

    So, now here we have evidence that you were wrong in your claim that the licence was ocmpletely destroyed, but it is also clear that parts of the licence are left intact.

    Sections 3 and 4, which are relevant, were completely destroyed. The other sections may be left intact but are completely irrelevant. They do not grant any rights and merely stress what probably holds according law probably, anyway. For all practical purposes, the license was completely destroyed.

    So, the court has the power to read the terms and conditions of the licence to determine if the licence has been breached (which it did),

    right.

    but also has the obligation to consider the existence of the licence in their calculations of damages.

    wrong concerning section 3 and 4

    By you agreeing that portions of the licence survive the void clause, you have to agree with my point, which has always been that the licence is valid, and that the ruling is consistent both with the law and with the licence.

    No. You try to save your position by pointing at these portions of the license kept intact, a fact irrelevant for all practical purposes.

    The court did not refer to the portions kept intact. It referred to portions that are void.

    You have moved the goalposts so much that I no longer have any idea what your argument is, and why it is that you doggedly continue to insist that the licence is invalid.

    I never said the license is invalid, but merely that the court erroneously de facto judged it to be invalid. It did that because it ignored the effect of the termination clause and still applied section 3 and 4 despite of their voidness.

    Of course it can if it is still relevant to the ruling. The court had to read the licence as a whole in order to determine if the terms had been breached. You are somewhow asking the court to determine that there had been infringement before reading sections 3 and 4, which is ridiculous.

    The court may of course read sections 3 and 4 to determine that there had been infringement. It may not, however, read section 3 and 4 after that point, because the termination clause says that these sections are invalid from that point.

    The court [...] then applied the termination clause. This allowed the court to declare that there was copyright infringement, which allowed them to award damages. The court then considered that the claimants were asking for too much, and lowered the damages to 3,000 EUR.

    But it did that by considering the number of conditions of section 4 that were breached, ignoring the fact that section 4 is irrelevant after that point, because of the termination clause.

    My question is, why do you still insist that there is a problem with the above ruling?

    Because the court granted damages only for omission of attribution, commercial use and modification. The court failed to see the defendants did not have any permission at all after the infringement. No damages were awarded for copying and publishing, despite the fact the defendants didn't have permission to do this. The court incorrectly assumed that the permission to copy and publish was left intact, and merely its conditions were (constantly) violated. It didn't see that this permission not only has these conditions, but that it, in addition to that, becomes void once the conditions are violated.

  39. A license is a contract in the US as well.

    In re: Aimster Copyright Litigation, 334 F.3d 643, 644 (7th Cir. 2003) (?If a breach of contract (and a copyright license is just a type of contract) . . . ?); see also McCoy v. Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) (?Whether express or implied, a license is a contract ?governed by ordinary principles of state contract law? ?.)

    The Supreme Court ruled in 1927 that a license is a contract:

    "Whether this [act] constitutes a gratuitous license, or one for a reasonable compensation, must, of course, depend upon the circumstances; but the relation between the parties thereafter in respect of any suit brought must be held to be contractual, and not an unlawful invasion of the rights of the owner."; De Forest Radio Tel. & Tel. Co. v. United States, 273 U.S. 236, United States Supreme Court (1927).

    In the ensuing eighty years not a single (that means not even one) federal court ruling can be found holding that a copyright license is anything other than a contract (unsuprisingly):

    "Whether express or implied, a license is a contract 'governed by ordinary principles of state contract law.'"; McCoy v. Mitsuboshi Cutlery, Inc., 67. F.3d 917, (United States Court of Appeals for the Federal Circuit 1995).

  40. Back in 2002, Eben Moglen tested automatic ipso factum termination theory in court and the test failed.

    Please read carefully what he said to the court regarding automatic ipso factum termination and then read carefully the court's response to the Moglen's affidavit:

    Moglen:

    http://www.gnu.org/press/mysql-affidavit.html

    "GPL makes special provision for dealing with the consequences of license violation. Under §4, any licensee who violates the GPL loses his right of distribution, until such time as that right is restored by affirmative act of the copyright holder.

    . . . .

    I have found §4 of the GPL to be absolutely essential to the conduct of our enforcement strategy.

    . . . .

    Without the leverage provided by §4, however, parties would resort to repetitive partial compliance, “capable of repetition but evading review,'' in language the Supreme Court has applied to a different sort of situation, substantially if not overwhelmingly complicating the task of securing reliable compliance with the license.

    . . . .

    The first version of NuSphere MySQL Advantage I reviewed was labeled Version 2.2. The CD ROM containing the software associated dates with each file in the customary fashion, and by reviewing the dates I concluded that the CD ROM was “burned,'' or fixed in a tangible form, on June 21, 2001. I installed this copy of NuSphere MySQL Advantage on a computer running GNU/Linux, following the standard directions provided. The standard installation program created a mysqld program on my computer's hard drive, and once that program had been created I used a standard information request to inquire of that copy of mysqld whether it included Gemini storage capacity. The program told me that Gemini storage capacity was included in mysqld, and gave me certain technical particulars, for example the largest Gemini table that it could store.

    I then checked whether the source code of the Gemini component of mysqld was available. I saw that it was not. I used standard tools to “recompile'' mysqld, which means to rebuild the program from the parts provided, and discovered that the rebuilt mysqld did not include Gemini capacity. In a manual distributed in the portion of the CD only related to Windows users I found the statement that “`GEMINI' tables

    will be included in some future MySQL 3.23.X source distribution.''

    On the basis of this examination, based upon my expertise and prior experience as a computer programmer, I concluded that the version of NuSphere MySQL Advantage under review violated the requirements of the GNU GPL. The mysqld program as distributed was covered by the GPL. It had been combined with program code from Gemini to provide those storage types, and had been “compiled'' into the “machine language'' copy of mysqld distributed to buyers. But the source code for the portion of mysqld that performed Gemini storage had been withheld, which violated GPL §3. This omission was not inadvertent, as was shown by the comment in the Windows version of the MySQL documentation, which said only that source code would be provided at a later date. Given my knowledge of the practices of programming and the requirements of the GPL, I concluded that the license violation was intentional. Whether intentional or not, any violation of the GPL results under §4 in a termination of the right to redistribute.

    I then reviewed a copy of Version 2.3.1 of NuSphere MySQL Advantage. The dates in the filesystem allowed me to conclude that the CD ROM was “burned'' on October 1, 2001. Installing as ordinarily directed I again verified that the version of mysqld placed on my hard drive contained Gemini storage capacity. I reviewed the source code directories and found that the source code of the Gemini module was fully available. I then verified that I could “compile'' or rebuild mysqld from the available parts so that it matched the version that had been distributed in “machine language'' on the disk. The statement about postponed source code availability had been removed from the Windows manual.

    Under GPL §4, I conclude, Progress Software Corp. lost the right to distribute MySQL when it distributed NuSphere MySQL Advantage in a fashion that violated GPL."

    The court's response:

    http://pacer.mad.uscourts.gov/dc/opinions/saris/p

    "Moreover [i.e. even assuming that the GPL was violated by Progress], I am not persuaded based on this record [i.e. Moglen's affidavit] that the release of the Gemini source code in July 2001 didn’t cure the breach."

    Under automatic ipso factum termination theory there would be no way to cure the breach to begin with.

    So the claims like

    http://www.softwarefreedom.org/podcast-media/gpl-

    "Termination (35:47)(v2 § 4, v3 § 8)

    v2 is automatic and permanent. (36:37)"

    are verifiably false.

    AFAIK in the copyright licensing context under US copyright laws the termination/rescission of licensing contracts is never "automatic":

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?…

    "In addition, prior to the filing of the infringement suit, RT Graphics never took affirmative steps to terminate the license which it had granted. This court agrees with other courts which have previously held that such a measure is necessary on the part of the copyright holder. In Graham v. James, the Court of Appeals for the Second Circuit stated that "[e]ven assuming [the publisher] materially breached the licensing agreement and that [the programmer] was entitled to rescission, such rescission did not occur automatically without some affirmative steps on [the programmer's] part." 144 F.3d at 237-38. In Maxwell, the Court of Appeals for the Eleventh Circuit expressed a similar view:

    [E]ven assuming arguendo that the Miracle's conduct constituted a material breach of the parties' oral understanding, this fact alone would not render the Miracle's playing of the song pursuant to [Albion's] permission a violation of [Albion's] copyright. Such a breach would do no more than entitle [Albion] to rescind the agreement and revoke [his] permission to play the song in the future, actions [he] did not take during the relevant period.

    Like the programmer in Graham v. James and the songwriter in Maxwell, RT Graphics never formally withdrew previously-given permission which allowed the alleged infringer to use the copyrighted material. See also Fosson v. Palace (Waterland), Ltd., 78 F.3d 1448, 1455 (9th Cir. 1996) (even assuming that movie producer materially breached licensing agreement to use composer's song in film, composer never attempted to exercise any right of rescission and summary judgment of noninfringement of copyright was proper); Cities Serv. Helex, Inc. v. United States, 543 F.2d 1306, 1313 (Ct. Cl. 1976) ("A material breach does not automatically and ipso facto end a contract. It merely gives the injured party the right to end the agreement; . . . ."). In the case at bar, the court finds that there was no rescission of the contract by plaintiff. Moreover, the Postal Service's conduct was insufficient to justify any rescission which could have taken place, and did not indicate a repudiation of the licensing agreement.

    Accordingly, the court holds that the Use Agreement was at all times valid and enforceable during the course of this dispute, and any remedy which the plaintiff may seek for its failure to receive credit cannot properly be based on a theory of copyright infringement. "

    http://openjurist.org/443/f2d/773/loma-linda-univ

    "A right to cancel a contract specifically provided by the contract itself must be exercised within a reasonable time after discovery of the facts upon which cancellation is predicated. As long as it is exercised within that period, the right is not waived. Cocoa Prod. Co. v. Duche, 156 Va. 86, 158 S.E. 719 (1931); John S. Hudson, Inc. v. Power Plant Eng'r Co., 154 Wash. 172, 281 P. 324 (1929); see Davidson Hardware Co. v. Delker Bros. Buggy Co., 170 N.C. 298, 86 S.E. 958. See generally 17 Am.Jur.2d Contracts 497, 510 (1964); Annot., 164 A.L.R. 1014, 1024 (1946)"

    http://www.kentlaw.edu/faculty/rwarner/classes/ec

    "Even assuming Graham materially breached the licensing agreement and that James was entitled to rescission, such rescission did not occur automatically without some affirmative steps on James's part. 22A N.Y. Jur.2d Contracts § 497 (1996) (“The failure of a party to perform his part of a contract does not per se rescind it. The other party must manifest his intention to rescind within a reasonable time.”) . . ."

    Even assuming successful rescission/termination with affirmative steps on the licensor part, what prevents the former licensee from entering into licensing relationship anew?

    The situation is no different when Microsoft would terminate my Windows 7 EULA and I just go and buy another copy and create another EULA relationship instead of terminated one.

    So just take a license, breach it, wait for termination, take another license, breach it, wait for termination… Rinse lather repeat.

    To prevent this from happening, GPL/CC-whatever should have specified a real condition precedent regarding previously terminated licenses (in addition to condition subsequent*** regarding the breach) and condition the new grant on successfull resolution of the previous breach dispute.

    ***) See e.g. 2009 California Civil Code – Section 1438

    "1438. A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition."

    http://ftp.resource.org/courts.gov/c/F3/341/341.F

    "A condition subsequent is "a condition referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition." Rincones v. Windberg, 705 S.W.2d 846, 848 (Tex.App. — Austin 1986, no writ); Black's Law Dictionary 293-94 (6th Ed.1990). The provision in the continuing contract here established both the initial provision of certification and the subsequent maintenance of it throughout the contract as conditions subsequent. While it is true that the contract states that failure to maintain certification "may be grounds for dismissal," thereby suggesting dismissal is not always automatic, such permissive phrasing is nonetheless consistent with the definition of a condition subsequent, which gives the party not obligated by the condition the choice of whether to avail himself of the opportunity to terminate the contract. "

    It is clear that under GPL/CC termination provision, failure to perform (valid) GPL/CC obligation(s) is a condition subsequent, which gives the GPL licensor the choice of whether to avail himself of the opportunity to terminate the contract.

  41. Deutschland-GPL (Harald Welte's litigation in Germany)

    Das Gericht hat rechtsfehlerhafter Weise die Prüfung eines Verstoßes von Art.81 EGV u. §1 GWB unterlassen.

    Das Urteil ist diesbezüglich *offensichtlich* falsch, denn einerseits wird die GPL als AGB bezeichnet, andererseits aber wie ein Individualrechtsgeschäft behandelt, um den §139 BGB anwenden zu können. So geht es nicht!

    §139 ist nicht auf AGB anwendbar. Wenn Klauseln in AGB unwirksam sind, so gilt nicht §139 BGB sondern §306 BGB. Danach ist nicht, wie das Gericht irrtümlich meint, der gesamte Lizenzvertrag nichtig, sondern der Vertrag bleibt wirksam und nur die nichtige Klausel wird durch gesetzliche Vorschriften ersetzt.

    Das Urteil könnte in der Berufung durchaus anders ausfallen. Die vielen Schreibfehler im Urteil sind ebenfalls bemerkenswert.

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