On 23 August 2010 01:34, Richard Weait <rich...@weait.com> wrote:
>
> That's an open question for the lawyer that wrote the CT. In casual
> conversation with one lawyer ("casual" as in I wasn't paying the
> lawyer) I was told that legal-English is not FORTRAN and the or is not
> required for legal-English syntax. This one lawyer does not trump the
> OSMF lawyer, this is just one data point. Perhaps any lawyers on this
> list would comment on this matter in general?
Well, the at common law (and therefore probably in every current
common law jurisdiction I know of and probably even the US) the
interpretation of contracts is a mixed question of fact and law (if
there were a jury, the judge would tell them the rules of
interpretation, the jury would apply them). In practice this means
that aside from questions such as what background material is
available for the interpretation exercise (eg the draft version),
deciding what a contract means is not really a legal question, its a
factual one. It would thus depend on who wrote it, what it was for and
so on.
This is lengthy way of saying that a lawyer may not be in a much
better position than you in determining what a contract means, and
also that there are no necessarily any "special" or "magic" words that
mean particular things in a contract.
The test in English law (again probably a common law generality) is to
look at what an objective observer reading the contract at the time it
was made would assume that the parties meant by it.
Thus English law does not work like FORTRAN it is rather more
forgiving (though those with long memories will recall that FORTRAN
did used to try to assist by inferring information - when I worked as
a duty programming advisor I would require that programmers wrote
IMPLICIT NONE at the start of their programs to introduce some kind of
sanity).
So CT 1.0 is certainly a head scratcher. I can easily see a judge
puzzling over what was intended by the internal contradiction between
sentence 1 (which requires that a contributor be a "copyright holders"
whatever they are) and the last sentence which only applies to someone
who is not a "copyright holder".
I think (and this is not a formal legal opinion - sorry) that a court
is most likely to decide that what is intended is to permit non
copyright holders to contribute provided they have permission of the
"copyright holder" to do so.
Quite how the second sentence of 1.0 factors in is unclear - if the
job its trying to do is to filter out "copyright holders" who are for
some reason (perhaps because of a binding contract or some rule of
law) unable to give the permission without violation of "some law...."
then the last sentence doesn't do that job - it requires that the
contributor have permission of a "copyright holder" but doesn't seem
to require that that holder be able to grant that permission lawfully.
To Anthony's question I'd say the answer was "probably, yes" despite
those objections.
So it is very oddly drafted and its not immediately clear what it is
trying to do precisely, which makes interpretation difficult for a
court.
Now on the specific question: may a non-copyright holder contribute
under the terms? As I have said a court is likely to conclude that
they may. This is fortified by various rules of law, in particular
"contra proferentem" - as the authors and profferors of the contract,
OSMF are assumed to know what they are doing and any ambiguity would
be resolved against them and in favour of a contributor. This is what
(I think) is meant by another poster to this thread talking about a
"contract of adhesion" - though in English law that sort of doctrine
relates particularly to unfair terms and consumers rather than as a
generality.
--
Francis Davey
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