Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Ivo Emanuel Gonçalves wrote:
> Hello people in this list,
>
> I'm part of Xiph.Org Foundation, the group behind Vorbis, FLAC, Ogg,
> etc.  One of our team mates has been working for two years on a XML
> protocol for playlists called XSPF.  It is very promising.  But as of
> late, he decided to put a license on the specification document, which
> is to be submited to the IETF as an RFC.
>
> The license he chose was CC-BY-ND, because he is afraid that others
> may create their own version of XSPF incompatible with his, hence he
> believes the ND clause will prevent that.  That may be true, but I'm
> afraid it may also legally forbid others to build upon XSPF, because
> that's exactly what the license states (i.e. one can't build upon this
> work).  In my interpretation that means no one is allowed to create a
> parser for XSPF without his permission, and if that's so, XSPF is
> going to bomb pretty hard, which is most unfortunate due to how great
> it is.
>
> So, I have two questions:
> Whose interpretation is right? His or mine?

It's been fairly well-established by court decisions in the U.S. that it 
is legal from the perspective of copyright law to create interoperable 
systems to a given (copyrighted) system or standard.  Baker v. Selden, a 
golden oldie, dealt with a strikingly similar situation: the plaintiff 
had published a description of a bookkeeping system and a book of forms. 
 The defendant published a set of forms for use with the plaintiff's 
bookkeeping system, but didn't simply copy the plaintiff's forms item 
for item.  The defendant won, establishing the rule that copyright 
didn't protect the way the system worked, and therefore didn't protect 
any aspects of the forms necessary for them to work with the system.

In your case, that probably means that any attempt to use copyright in 
the standard at all to control use of or extension of XSPF wouldn't 
work.  Given that, it's kind of irrelevant what CC license you use; 
people will be able to use and parse and build on XSPF no matter what 
you say.  So your teammate is right in that.

On the other hand, this analysis would suggest that he's also wrong to 
the extent that he thinks a CC-ND license would stop anyone from 
creating an incompatible version.  The reasoning again is functionality 
-- so much of the specification is functional, that he has copyright 
only in the words he uses to describe it, not the way it works.  Anyone 
is free to describe that "way it works" in other language.  As long as 
they don't copy from is own description document, but actually write a 
description themselves, they can go ahead and produce painfully 
incompatible "version" of XSPF.  So your teammate is wrong to think that 
using a CC-ND license will do much good, given his goals.

Net takeaway: ND is ineffectual here.  It might help prevent some drift 
in the official standards document, but as long as that's available 
someplace canonical, there's no serious worry that the 
description-of-what-is would drift anyway.  Given that, CC-BY seems like 
a perfectly reasonable license for the description.

James