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Re: Draft summary of Creative Commons 2.0 licenses (version 3)

<quote who="Andrew Suffield" date="2005-03-28 01:43:54 +0100">
> On Sun, Mar 27, 2005 at 12:50:15PM -0500, Benj. Mako Hill wrote:
> > > My wife says about debian-legal, "It sounds like you are the white
> > > hat hackers of Free Software licenses. You find the security holes
> > > in the licenses before the bad guys do." I thought that this was a
> > > pretty good analogy. People get real mad at white hats, too. It's
> > > not nice to be told that your software has a bug, nor that your
> > > license does, but it's a necessary function.
> > 
> > Absolutely. As I said to Andrew, I think it also helps to remember
> > that this isn't the same as source code and the the nature of bugs
> > is somewhat different. It's, for lack of a better word,
> > fuzzier. Contracts are interpreted by people and, ultimately, by
> > people who are judges and things like reasonable expectations,
> > intent, and good/bad faith that don't make sense in the source
> > code metaphor are central aspects in law and licensing. I think we
> > are sometimes guilty of giving these less weight than we should.
> We *can't* give serious consideration to that sort of thing. It is
> precisely because these issues are fuzzy that we can't afford to. As
> soon as you start saying "This might be non-free, but it's okay, you
> might be able to get out of it anyway" then what you're also saying
> is "You are going to have to go to court if you want to exercise the
> things enumerated in the DFSG, and you might lose".

Well, that's not what I'm saying at all. I think that the chance of
this going to court every is next to none. I think that the chance of
it going to court and lasting more than a day in front the judge are
next to next to none.

I'm saying that there are cases where (a) we know the license was
written to say a certain thing (b) the text of the license is clumsy
and *might* be interpreted to mean something else (c) we can be
confident that alternate interpretation would not be seen as fitting
reasonable expectations in the opinions of courts/judges (d) that
alternative interpretation is not known to be held by anybody using
the license or the authors of the license. I think in those cases, we
can go ahead and optimize for the common -- hell, the *only* -- case
rather than throwing everything out because of what we fear might
happen if licensors start acting maliciously en mass and judges stop
paying attention to central aspects of contract law.

> It's not free if you have to fight a court battle to do it. Those
> things cost a fortune.

We have legal counsel. We can remove a work before we sued or ever
have to go to court when we know the copyright owner is getting
creative with their interpretation of the license. We have reason to
believe that everyone using the license now thinks the clauses are
free in the way we need them to be.

But are you really saying that we're going to have to go court to
argue that the part of the CC webpage that is *explicitly* not part of
the license is part of the license? Or that the license is barring
private distribution?

The authors of the license and everyone who know who uses it
understands these one way that is more than an equally valid
interpretation than the apocalyptic scenario we seem to be optimizing

Besides, we can't stop other people from taking us to court. If people
want to be unreasonable about the way they interpret licenses, they
can do it with *any* license. What we can and should do is not
include software when we have reason to believe that we'd be using it
under terms other than what the licensor would approve of or when the
terms, as they interpreted by the copyright holder, are non-free.

Requiring a known free license issued by the copyright holder is a
damn good way to do this and I support it (of course). I'm not saying
we should just start accepting any license in the grey area (or even
this licenses and I think has some unambiguously non-free bits); I'm
saying that there is nothing but a grey area. Ultimately, this is all
going to interpreted by people and we need to choose licenses that
could not be *reasonably* interpreted to mean that they are
non-free. Intent and reasonable expectations *are* part of that at
every stage -- not just in courts.

> This is particularly true because the license can invariably be
> easily rewritten to eliminate the fuzziness.

Yes. That's always better. But it doesn't always happen and I'm not
happy tossing out any chance of more than what could be up a million
CC works if it comes down to these two clauses that we know are meant
to be free, that everyone licensing the works seems to think are
free, and that I am comfortable saying that no judge would rule
mean anything other than free.


Benjamin Mako Hill

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