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cc-licenses - Re: [cc-licenses] Version 3.0 — It's Happening & With BY-SA Compatibility Language Too

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Subject: Development of Creative Commons licenses

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  • From: Mia Garlick <mia AT creativecommons.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] Version 3.0 — It's Happening & With BY-SA Compatibility Language Too
  • Date: Mon, 19 Feb 2007 12:30:06 -0800

ok, so i must confess that in my many years of drafting and reviewing and negotiating licenses, "including without limitation" has never been understood to mean "you may disregard that which is listed here" but instead to mean "you must at a minimum have regard to these things but may also have regard to things that we cannot foresee yet"....it's the whole exhaustive list issue with the language intended to show that the list is not exhaustive...

obviously, the purpose of including these two baseline conditions is to give people comfort that CC will consider these two conditions at least or as a minimum.

so let's try to get agreement...i don't like the "at least" language but wondered if we could all agree on this: "including, at a minimum, because that license.."

what say you??

On Feb 12, 2007, at 6:33 PM, James Grimmelmann wrote:

Mia Garlick wrote:
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 think that is right. Given your concerns about timing and
flexibility, I agree that getting compatibility language into the 3.0
versioning, and soon, are important goals. While I disagree that these
conditions should be in the license at all, I would not want my concerns
to block this important change.

As you note, however, I remain very worried about the phrase "including
without limitation." To me the natural reading, in context, was that CC
could approve a license that had the same terms, purpose, and effect,
but was also allowed to approve a license that did not. I hear you to
be saying, though, that intention of that section was to indicate that
CC might impose additional conditions in addition to make sure that the
license remained essentially equivalent.

Have I just been ruined by law school to insist on overly-close
readings, or would the new paragraph express the desired sentiment more
clearly if "including without limitation" were simply dropped? Or
replaced with "at the least"?

These questions are all, as you say, stylistic, but past experience on
this list has shown that handling stylistic details well is good
future-proofing.

James
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