[Hrafn]

Originally Posted by calvin-c

Re Point 1 I agree that it must be both material & mutual. The material misunderstanding was whether or not the distribution would be via CD only or via CD & Internet. Some might not consider that material. I do.

No. Bujold's failure to understand that the terms of the contracted permitted Baen to publish the CD under the license it did, is not a "mutual misunderstanding". And it is the license that is the key element of this, not the CD or the internet (thumbdrives and USPS could have been used, if far less conveniently).

The mutual misunderstanding is that Baen apparently believed that Bujold understood what they were telling her. If they knew she didn't understand it then they committed fraud. I doubt that so I think there was misunderstanding on both sides.

No. There is no legal obligation on Baen's part to ensure that Bujold fully understood all implications of the contract. The claim that mere "misunderstanding" that the counterparty had misunderstood the terms of a contract (let alone the implications of those terms) constitutes "mutual misunderstanding" clearly obliterates the legally meaningful and determinative difference between "unilateral misunderstanding" and "mutual misunderstanding".

I would further point out that no party to the contract is questioning its legality.

As for the stealing, huh? The only people stealing Bujold's work are those who continue distributing it in defiance of her right to control the distribution. That's neither Baen nor 5th Imperium and I'm not sure how you think I said that. I'd only consider it stealing if they did that after being directly contacted by Bujold or her representatives (with cease & desist). Hearing 3rd hand that she doesn't want her works distributed wouldn't necessarily be believable so, in my opinion (FWIW) that wouldn't count as reasonable notice. (Re 5th Imperium I think contact by Baen would count as they were Bujold's representative at the time the CD was published.)

No. No. No. No. This is wrong in so many ways:

1. Bujold assigned most of her "right to control the distribution" to Baen under her publication contract with them. They would have been unable to publish her works otherwise. That being so, she has no legal right to interfere with what they do with her work unless either (i) what they do exceeds what the contract permits or (ii) the contract gives her relevant veto rights. Neither seems likely, nor have we been presented with any evidence that either is the case.
2. Baen then published Bujold's works under a license that permits anybody (5th Imperium or anybody else) to non-commercially copy or republish this work.
3. This license is a legal relationship between Baen (the copyright assignee) and the copier. Bujold has no legal standing in this relationship, so her "contact" (direct or otherwise) is legally meaningless.
4. I would therefore reiterate that anybody (non-commercially) copying the material contained on the CD, does so perfectly legally, as they do so under the terms of a license from the copyright's assignee.
5. Even if this were not legal it still WOULD NOT BE "STEALING". Legally, it is a "tort", not theft. Even analogously it would be closer to vandalism than theft, as the harm to the owner/victim is through damage to the value of the copyright, rather than outright deprival of it.

I would therefore suggest that calvin-c stop pontificating in such a hyperventilated manner (and particularly throwing the word "stealing" around with such ignorant abandon), at least until they have some understanding of the legal framework involved. "Meeting of the minds", "mutual misunderstanding" and theft all have well-defined legal definitions (i.e. they are 'terms of art'), and DO NOT mean what calvin-c appears to think they mean.