Re: Copyleft conflict in interpretation only?

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
ht
tp://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-requestlists.ibiblio.org"
<cc-licenses-requestlists.ibiblio.org> wrote:

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> Today's Topics:
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>    1.  Copyleft conflict in interpretation only? (Terry
Hancock)
> 
> 
>
------------------------------------------------------------
----------
> 
> Message: 1
> Date: Wed, 18 Apr 2007 15:14:25 -0500
> From: Terry Hancock <hancockanansispaceworks.com>
> Subject: [cc-licenses] Copyleft conflict in
interpretation only?
> To: cc-licenseslists.ibiblio.org
> Message-ID: <46267C21.9070904anansispaceworks.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)
> 

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Re: Copyleft conflict in interpretation only?

Thread: Re: Copyleft conflict in interpretation only?