Development of Creative Commons licenses

[Mia Garlick <mia AT creativecommons.org>]

so i always appreciate feedback on how to draft things better,  
especially when we are trying to forge new ground...i guess though,  
that i am not convinced that the issues identified here warrant the  
changes suggested....my sense is that the objection is more a  
stylistic one to the phrase "including without limitation" .... than  
to the actual structure...but maybe i'm wrong...

i guess maybe it is good to briefly explain what CC is trying to do  
here — in short: we are ever hopeful that we can declare at least one  
license to be compatible with a CC license in the near future *but*  
we also want to version to 3.0.  if we hold off versioning to 3.0,  
then it's bad because we have basic agreement on the changes and the  
changes are a good thing.  alternately, we version to 3.0 and then  
have to version again just to enable compatibility when we all get so  
far that we can declare it.  the mantra in our office is to try to  
version as few times as possible. in keeping with this mantra, we  
have decided to set up this structure to give us flexibility to  
enable compatibility external to license versioning. i think this is  
in everyone's interest. the challenge then becomes how to give  
everyone the confidence that CC is not going to randomly declare some  
licenses compatible that the community does not feel to truly be  
compatible.  this is the reason for drafting in the two baseline  
conditions that must be satisfied prior to CC declaring  
compatibility.  that said, however, we need to maintain flexibility  
(which really has to come down to CC's analysis and judgment because  
we are the ones who conduct a line-by-line assessment of potentially  
compatible licenses and engage in internal debate and review as to  
whether and how many terms of a potentially compatible license  
conflict with the spirit, philosophy or effect of a CC license).   
hence the language "including but without limitation" — at a minimum,  
CC must take into account those two factors but otherwise it can take  
into account the totality of the license and its terms including  
those that may not have anything to do with the License Elements  
(such as limitation of liability clauses and jurisdiction limitations).

in terms of the definition — i think it was either rob or drew who  
pointed out that the (i) and (ii) could be better positioned so i'll  
make that amendment.  but in terms of the suggestions below, i think  
we are just rearranging words and not changing the substance.  as for  
the hypo in which this could go before a court, not that i want to  
ever suggest that anyone bring an action against CC, who if i were  
advising a licensor, i don't know that i would necessary recommend  
them to go after a licensee who relicensed under a license that CC  
had approved....

On Feb 12, 2007, at 7:12 AM, James Grimmelmann wrote:

> 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
>
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