Copyleft conflict in interpretation only?

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 (hancockAnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpac
eworks.com

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Terry Hancock wrote:
> 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.

I would echo what Trinh has said, but add the following.

Where CC has written the licenses, its opinion as to their
meaning,
particularly where that opinion is communicated to the
public (as in the
NC guidelines) and confirmed by discussion and opinions of
others in the
community (as on this list, in the situations where there is
agreement),
CC's opinions come into the inquiry in two ways.

First, CC's communications (and all of yours) will have some
effect in
influencing what people think the licenses mean.  If you go
and explain
how SA / copyleft provisions work to more people, more of
them will
understand it and mean roughly the same thing by using a SA
license.

Second, where CC makes its opinions and intentions known,
that can put a
limit on what a reasonable licensor (and licensee) would
think.  It is
not reasonable to think, oh, let me pick something absurd,
that a NC
license forbids rich people from usign the work.  Greater
public
license-savvy means that courts are less likely to accept
bizzare
personal interpretations.

Both of these effects provide a lot of tempering of possible
divergence
in license interpretations.  Even beyond that, some scholars
are also
developing legal theories of boilerplate and CC licenses
that would
counsel courts to show especial concern for uniformity.

James
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