Development of Creative Commons licenses

[Thinh Nguyen <thinh AT creativecommons.org>]

In principle, the basis for the interpretation of any agreement (contract or
license) is the intent of the parties. However, in practice, this can be
more complex. 

To quote the general principle as explained by a Delaware court:

When interpreting a contract, the Court¹s function is to ³attempt to
fulfill, to the extent possible, the reasonable shared expectations of the
parties at the time they contracted. The Court does this by initially
looking to the contract¹s express terms. If the terms are clear on their
face and reasonably susceptible to only one meaning, then the Court gives
those terms the meaning that would be ascribed to them by a reasonable third
party. If, however, a contract¹s language is ambiguous, then the Court will
look beyond the ³four corners² of the agreement to extrinsic evidence. A
contract is not ambiguous merely because the parties disagree as to its
proper construction. Instead, ambiguity exists when the terms of a contract
are reasonably susceptible to different interpretations or have two or more
different meanings. Also, when possible, the Court should attempt to give
effect to each term of the agreement and to avoid rendering a provision
redundant or illusory.  Matria Healthcare, Inc. v. Coral SR, LLC, (Del. Ch.,
March 1, 2007) (available at
http://www.delawarelitigation.com/MatriaHealth.pdf)

In other words, if the contract as written is clear (this is determined by
the court under an objective standard), then the clear and express meaning
governs the interpretation. However, if the language is ambiguous, then the
court will listen to evidence beyond the language of the contract itself
(i.e., so-called "parole evidence") to guide the interpretation.  There are
a wide variety of tools and principles that courts used to interpret such
evidence, and one source of such evidence could be the "official
interpretation" or comments given by the drafter of the agreement (assuming
the drafter is not one of the parties). The reason that evidence of the
drafter's interpretation or comments would be relevant is that the parties
may have been guided in their reasonable expectations as to the meaning of
it on the basis of such public statements or "industry" standards when they
entered into the agreement.

Therefore, in your example, if Alice has a different interpretation than
Bob, it is not immediately obvious that her interpretation is the one that
governs. If the court decided that her interpretation was not a reasonable
one, based on the language of the agreement, then her interpretation would
not be controlling. On the other hand, if the language is such that
reasonable people (again, as determined by the court) can disagree, then the
court will allow the parties to introduce extrinsic evidence, such as the
interpretation of the drafters, in order to resolve the ambiguity. In the
latter case, Alice's interpretation has to be viewed in light of general
expectations about what the license means (including what the drafters have
said it means). 

So, in general, it is true that the relevant guide to interpretation of a
contract is the *objective* intention of the parties. But it has to be
objective and reasonable--it cannot be a secret or idiosyncratic
interpretation that no one knows about. And where there is ambiguity in the
language, what is objective and reasonable can indeed depend on what the
drafter of the license or contract has publicly stated. So it is not totally
accurate to say that the drafter's public interpretation is always
irrelevant--sometimes it can be very relevant when there is ambiguity--and
that may mitigate at least some of the concern that we might end up with
multiple inconsistent interpretations.

However, in practice, different courts can sometimes look at the same issue
and disagree. So there is always the possibility that courts in different
jurisdiction would reach inconsistent conclusions--but that is always a
possibility with any legal issue. The fact that CC has jurisdiction-specific
licenses may help reduce this risk somewhat, but not entirely.

Thinh
Counsel, Science Commons



On 4/19/07 12:00 PM, "cc-licenses-request AT lists.ibiblio.org"
<cc-licenses-request AT lists.ibiblio.org> wrote:

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> Today's Topics:
> 
>    1.  Copyleft conflict in interpretation only? (Terry Hancock)
> 
> 
> ----------------------------------------------------------------------
> 
> Message: 1
> Date: Wed, 18 Apr 2007 15:14:25 -0500
> From: Terry Hancock <hancock AT anansispaceworks.com>
> Subject: [cc-licenses] Copyleft conflict in interpretation only?
> To: cc-licenses AT lists.ibiblio.org
> Message-ID: <46267C21.9070904 AT anansispaceworks.com>
> Content-Type: text/plain; charset=UTF-8
> 
> 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)
>