Subject: Re: (OT) - Major Blow to Copyleft Theory
From: Arnoud Engelfriet <arnoud@engelfriet.net>
Date: Mon, 27 Aug 2007 19:11:53 +0200

John Cowan wrote:
> If my house is an architectural masterpiece and I let people wander
> through the ground floor with a sign that says "SELF-GUIDED TOURS,
> 0900-1500 ONLY", is there really a civil-law contract with every member of
> the public, and am I in breach when I shut down the house one day at noon?
> I hope not, or I could be drowned in lawsuits and required (specific
> performance) to keep my house open till 1500 every day no matter what.

Well, you can terminate a contract with reasonable notice.
But yes in situations like this you can have an issue if you
suddenly wake up one day and decide you'd like to close down
the house. That tour operator with a bus full of Japanese tourists
is going to be upset.

> > If it's not a contract, then usually it's something like an easement.
> 
> Well, there you go.  Does the above sign (absent prescription (adverse
> possession, to common lawyers)) actually create either contract or
> easement?  Or is it a mere waiver of property rights, revocable at will?

Initially it would be a contract. You offer entrance, I accept
the offer so I can enter. If I exceed the boundaries of the contract
(for example, by entering the room marked "private"), you can
sue me for trespass. 

An easement could come into play when you've permitted people to
enter the grounds for a long time (I believe something like 20+ years
here in the Netherlands). Then you can't enforce your property right 
anymore against people who enter the grounds, even when you remove
the sign and apologize to the tour operator.

> It's not uncommon in American cities, where a building has been built
> on pillars tall enough that there is pavement at ground level, for the
> outline of the building to be drawn on the ground with a sign that says
> "Private property of So-and-so".  This is a bare license: members of
> the public may cross the pavement at will, but no adverse possession/
> prescription arises (that is, the pavement does not become a public
> highway at common law), because the public is put on notice that private
> property rights can be enforced.  (Sometimes, as in New York City,
> the pavement is actually cordoned off once a year in order to make it
> clear that no easement has been formed.)

Intriguing. The most difficult bit about easements is always
the proof: how long have the grounds been open to the public.
If you have a camera present when you cordon off your pavement,
that neatly solves this problem.

Arnoud

-- 
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
              Arnoud blogt nu ook: http://blog.iusmentis.com/