Development of Creative Commons licenses

[James Grimmelmann <james AT grimmelmann.net>]

Mia Garlick wrote:
> the statement is on the compatible licenses page in addition to being  
> in the license. in relation to (b) — the language as included in both  
> the page and the license does, imho, limit those licenses that CC can  
> approve as compatible b/c CC can only approve a license as compatible  
> which at least meets these conditions.

I am skeptical that the phrase "including without limitation" can be 
read to put any limit on the licenses that CC can approve.  I think my 
concern is that that phrase tries to have matters both ways.  It's a 
restriction of compatibility to those licenses that really are 
equivalent, but it still wants to make CC's determination (rather than 
actual equivalence) the canonical indication of compatibility.

> also, i think it's necessary to include it as a defined term for the  
> sake of clarity and defined terms tend to get included in the  
> Definitions section.  subject to (f), none of the reasons given below  
> are a reason to keep language out of the licenses if that language  
> that assists and gives confidence to at least one if not both parties  
> about the parameters of relicensing.  in relation to (f), i don't  
> understand how ambiguity arises.  can you elaborate and give an  
> example of a scenario in which a court would be called upon to decide  
> this issue so that i can better understand the point?

One scenario is that CC approves a license that some people don't think 
really is equivalent.  Consider the Evil Attribution ShareAlike License, 
which requires licensees to provides CC-style attribution, along with 
the phrase "Clubbing baby seals is fun."  If CC puts Evil-BY-SA on the 
approved list for CC-BY-SA, and licensors start objecting, one of them 
might sue a licensee.  The licensee will point to the compatibility 
clause and say that CC's determination controls, but the licensor will 
argue that the terms of Evil-BY-SA don't really have "the same purpose, 
meaning and effect" and therefore that CC's approval was wrong and 
should be ignored.

The extra language creates an ambiguity; the court will have to decide 
whether CC's approvals always control, or sometimes don't.  The current 
language waffles on that question; it seems to say that CC's approval 
controls, but then there's this extra "including without limitation" 
language that you say does restrict CC.

Could the language in the license read something more like:

"Creative Commons Compatible License" means a license that is listed at
http://creativecommons.org/compatiblelicenses that (i) explicitly 
permits the relicensing of derivatives of works made available under 
that license under this License, and (ii) has been approved by Creative 
Commons as being essentially equivalent to this License.  Creative 
Commons will approve those and only those licenses that, in its 
judgment, contain terms that have the same purpose, meaning and effect 
as the License Elements of this License."?

I still have misgivings about including the second sentence in the 
license, but this approach makes clearer that it's a statement about 
CC's intentions, rather than a condition that's part of the license 
agreement between the parties to the license. "In its judgment" or some 
similar discretionary language also seems clearer than "including 
without limitation" in indicating that CC must consider the question in 
the first instance, but that its decision is final.

James