RE: MPS and PLoS Sign Agreement

["Richards,Robert" <Robert.C.Richards@drexel.edu>]

Sandy,

The Federal Circuit's recent opinion in Jacobsen v. Katzer, 
<http://www.cafc.uscourts.gov/opinions/08-1001.pdf>, mentions the 
consideration issue.  See Jacobsen v. Katzer, No. 06-CV-01905, 
slip op. at 12-13 (Fed. Cir. Aug. 13, 2008) ("The choice to exact 
consideration in the form of compliance with the open source 
requirements ... rather than as a denominated fee, is entitled to 
no less legal recognition.").

That is, according to the court, as I read its opinion, the 
user's express or implied promise to abide by the attribution 
requirement is sufficient consideration to support the contract. 
Given that account of the consideration, then one may view the 
boilerplate contract as an offer and the user's conduct affirming 
the terms of the contract as the acceptance.  Circuit Judge 
Easterbrook gives a memorable account of this view in ProCD, Inc. 
v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).  Some U.S. courts 
have declined to enforce electronic boilerplate licenses on 
various theories, including lack of acceptance; but many U.S. 
courts (including the Federal Circuit and the 7th Circuit) have 
enforced such licenses.  The Jacobsen opinion primarily concerns 
how the condition/covenant distinction determines whether the 
attribution requirement implicates copyright rights.  That 
opinion and the authorities cited in it may be of interest to the 
list.

Robert C. Richards, Jr., J.D.*, M.S.L.I.S., M.A.
Head of Technical Services
Drexel University Earle Mack School of Law
Legal Research Center
3320 Market St., Rm. L366
Philadelphia, PA  19104

215/571-4774 (voice)
215/571-4768 (fax)
rcr38@drexel.edu

* Admitted to practice in New York only.

The opinions expressed above are solely mine, and do not necessarily
represent the views of my employer.  The opinions expressed above do not
constitute legal advice.

________________________________

From: owner-liblicense-l@lists.yale.edu on behalf of Sandy Thatcher
Sent: Mon 9/1/2008 5:37 PM
To: liblicense-l@lists.yale.edu
Subject: Re: MPS and PLoS Sign Agreement

One could simply post one's work online with a notice such as the 
following: "This work is made available to the public by the 
author who asserts no rights under U.S. copyright law and permits 
all uses of it subject only to the condition that the author's 
name accompany the text every time it is reproduced."

As noted, under U.S. law, attribution is not guaranteed as a 
right. So if attribution is desired, this needs to be stated as a 
condition separate from the waiver of copyright. Under European 
law, "moral rights" including attribution are inalienable, so the 
condition above would be superfluous.

I wouldn't call this a "license" at all, but simply a voluntary 
waiver of rights by the author. To me, "license" suggests a 
contract between the author and one or more users.

Perhaps I don't understand exactly how the CC licenses work, but 
do users all have to "sign" these licenses in some manner? Or do 
they operate more in the manner of a "click-on" agreement, about 
which I understand there is some controversy as to their legal 
validity?

Sandy Thatcher
Penn State University Press