Development of Creative Commons licenses

[Terry Hancock <hancock AT anansispaceworks.com>]

I wrote this on the tail of an earlier email, but it's really a new
question about something that's been bothering me for awhile now:

Several times on this list I have heard the claim that it is the opinion
of the licensor and not the license steward* whose interpretation
matters in the event of an infringement claim.

Since it is quite common for licensors to have slightly different
interpretations of what any copyleft license means, and since one of the
conditions of a copyleft license is that alternate terms cannot be
applied, is it not true that two identically-licensed works can be "in
conflict" purely on the basis of the licensors' interpretations?

That is to say: exact same license text, but the "true license" is
different because the words were interpreted differently by the two authors.

An example, to make this more concrete:

I have two works, one by Alice and one by Bob, both have released under
(say) CC-By-SA v3.0 -- so (in theory) they are compatible, but in
actuality, I'm opening myself up to a lawsuit because Alice and Bob have
different ideas about what CC-By-SA 3.0 means.

What if Alice releases a photograph By-SA, thinking that the copyleft
entitles her to demand By-SA licensing on all works that contain
derivatives of hers (i.e. not merely the container). Bob, meanwhile,
releases another photo under the By-SA, with the understanding that
contained works are not bound by copyleft.

Conceptually, Alice has really licensed under some By-SA+, which is not
the official CC interpretation of the By-SA, while Bob has licensed
under By-SA, in agreement with the official interpretation. But CC does
not apparently have the authority to insist on its interpretation, so
Alice's interpretation is binding (not the CC interpretation).

I don't actually speak to either Alice or Bob, but I read the By-SA
license that is represented to license both, and find them compatible. I
create a By-SA work containing derivatives of both.

Unfortunately, I now have hung licensing and no right to publish (even
though I can't possibly know this from the license texts). BOTH Bob and
Alice can sue me.

Why? Because I've either violated Bob's license by adding an additional
restriction (Alice's "SA+") or I've violated Alice's license by not
re-licensing Bob's work under the "SA+".

We all know that copyleft incompatibility can occur due to using
distinct copyleft licenses (e.g. GPL and MPL conflict, GFDL and By-SA
conflict, etc), but can By-SA conflict with By-SA, purely on the basis
of interpretation?

Such a case would undermine the benefits of free-licensing: it would be
impossible to avoid conflicts without contacting each of the component
authors (which is what free-licensing avoids).

If there is such a risk, what can be done to eliminate it? Might it be
possible to cede such interpretative power to the license author after
all (i.e. make one of the terms of the CC licenses be that the author
accepts the CC's interpretation of any terms which are ambiguous)?

Or are there hazards to that strategy that must be avoided?

I'm thinking that the "interpretive power" idea would be smart, but it
is very much like a jurisdictional provision, which many people regard
as non-free. Alternatively, it could be understood as an arbitration
provision.


Cheers,
Terry


*Where:
  licensor = the person who licensed the work under the given license
        (in the example, Alice or Bob)

  license steward = the person or organization who wrote and/or
maintains the license being used
        (in the example, Creative Commons)


-- 
Terry Hancock (hancock AT AnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpaceworks.com