On Sun, Mar 27, 2005 at 12:30:20PM -0500, Benj. Mako Hill wrote: > > It is entirely possible that some licensor could go to court and say > > "I used the CC licenses in the belief that this was prohibited, and > > with the intent to prohibit it". There is nothing to use in defence > > against this. > > Absolutely. And I think that if their argument involved the DRM clause > or the trademark bit in the CC license, they would lose because the > defendant would be able to bring in Larry Lessig, the rest of the CC > board to say they that isn't what they meant and that they didn't > think that was a reasonable interpretation, and because, at the end of > the day, the judge is going to determine whether their reading is > reasonable himself or if the licensee's reasonable expectations were > valid. The CC board are disqualified from commenting on 'reasonable expecations' because they wrote the license. That's a matter of law everywhere I know of that actually has a 'reasonable expectation' concept (not everywhere does). None of the parties to a contract are qualified to judge 'reasonable expecations'. Courts routinely accept fairly absurd notions of 'reasonable expectation'; there are typically a wide range of reasonable expectations, but only one of them is the actual license. I would not bet on the outcome of a lawsuit founded upon such a claim, and any lawyer providing you with formal legal advice should tell you the same thing (or you'd better check their malpractice insurance is up to date). Nor is there any reason why we should have to. It is simple enough to fix the clause. Furthermore, the 'reasonable expectation' thing does not apply if the licensee can be shown to have had actual knowledge of the (possible) interpretation of the relevant clause when they accepted the license. This thread constitutes evidence of actual knowledge. So it cannot apply here. We cannot dismiss this interpretation after giving it serious consideration and then turn around later and claim we didn't think it was reasonable. If we want to reject it, we are obliged to renegotiate the license to eliminate it. All this stuff about 'intent' and 'expectations' is designed to stop parties from being tricked into clauses they would not otherwise have agreed to. As such, it isn't going to apply to stuff that you've discussed in advance. Notably, whenever you challenge a clause in a contract or license, and the opposing party says that your objection does not matter because of something along these lines, they are lying, because your challenge just voided it. If you now proceed to accept the clause as written, you have just implicitly accepted the objectionable interpretation that you raised; the best you could do was try to show that they were negotiating in bad faith (because they just lied to you, but they only need plausible deniability to get out of it). The only reasonable way to proceed is to rewrite the clause in a form where both parties agree on the interpretation. [The above paragraph does not apply to all EU countries; contract law gets a bit funny in some of them, and the details tend to be incomprehensible when translated badly into English. This stuff is notoriously twisty in an international setting] In summary: it is obvious that this interpretation would be considered reasonable - we did. We just don't like it. > > > Is ALLCAPS "NOT A PART OF THE LICENSE", plus statements from the > > > authors, plus a graphical distinction and a explicit statement that CC > > > is not party to the license in the same block of text *really* > > > "sufficiently ambiguous" enough to make this a freedom issue? > > > > Given the existence of licensors who have included it, in plain text, > > as if it were part of the license? Yes, I would say that is > > sufficiently ambiguous, since not even the licensors can understand > > it's supposed to be disjoint. > > I'm not sure that the least common denominator is the best way to > making the decision on whether this is a freedom issue in the > license. The existence of one idiot implies the existence of N broken copies, where all of them copied the file written by the idiot. License errors propagate like flies. It eliminates the possibility of us being able to say "anything under this license is free". We have already established that the trademark clause does not always render a package non-free. That's not an interesting observation. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -><- |
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