[od-discuss] Fwd: Open Government License - Surrey 2.0
herb at dynamic-solutions.com
Fri Apr 3 15:31:05 UTC 2015
for the record
---------- Forwarded message ----------
From: Baden Appleyard <b.appleyard at ausgoal.gov.au>
Date: Mon, Mar 30, 2015 at 3:32 AM
Subject: Re: [od-discuss] Open Government License - Surrey 2.0
To: Herb Lainchbury <herb at dynamic-solutions.com>
*Baden M Appleyard*
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On Fri, Mar 27, 2015 at 5:57 PM, Herb Lainchbury <herb at dynamic-solutions.com
> This is a friendly reminder. There is approximately one day left to vote
> on the Open Government License - Surrey v2.0.
> I request that advisory council members indicate whether they agree that
> the license conforms to section 2 of the open definition (v2.0) found here:
> Please use +1 for agree and -1 for disagree.
> You can find a discussion here:
> and here:
> You can find the text for the license here:
> OGL Surrey v2.0
> Thank you,
> On Wed, Mar 18, 2015 at 10:54 AM, Andrew Rens <andrewrens at gmail.com>
>> Just to clarify how courts tend to interpret licences:
>> Peter wrote
>>>> I agree. Perhaps I am too "scientific" but I believe the licence should
>>> be a standalone object which ultimately has to be interpreted in what its
>>> says. On occasion a court may ask what was the intention of the legislator,
>>> but that's up to the courts to decide
>>> I think a court could be concerned with the intentions of the legislator
>>> not with the interpretation of the licensor (except to moderate any
>> Common law (UK, US, Australia, South Africa, India etc) courts set out to
>> give effect to the intention of the licensor. The primary means for
>> expression of this intention is the licence itself.
>> Peter is right that the licence must be considered first without
>> introducing other sources for finding the intention of the licensor.
>> However language being what it is a licence considered in this way may not
>> always be clear on a particular issue. If that issue is in dispute then a
>> court will have to look to surrounding circumstances to see whether these
>> will resolve the ambiguity.
>> An important element in the surrounding circumstances is interpretative
>> guidance provided by the drafter of the licence e.g. the Free Software
>> Foundation giving a public explanation how the GPL should be understood.
>> The drafter of the licence is not always or not usually the licensor.
>> The interpretation that a licensor places on a licence may also be an
>> important surrounding circumstance however how weight it would have would
>> depend on factors such as how long the licensor had claimed that
>> interpretation, how much attention the licensor drew to it, and to what
>> extent it was in conflict with other surrounding circumstances, not only
>> the interpretation of the drafter but also community practises. An after
>> the fact claim that "what I really meant was..." is not an important
>> surrounding circumstance.
>> A court should never adopt an interpretation of a licence that is
>> contrary to what it clearly says even surrounding circumstances suggest
>> that interpretation but in the event of ambiguity it would do so. Contracts
>> are also interpreted to implement intention but not the intention of one of
>> the parties but the mutual intention of the parties - and the primary
>> source for that must be the contract. This is one reason why common law
>> open source lawyers care whether something is a bare licence or a contract.
>> Continental lawyer insist that in all continental legal systems copyright
>> licences ARE contracts.
>>> Part of the problem here is that the licensor is also the creator of the
>> Which would make their stated interpretation especially if it widely
>> publicised from the outset more important BUT only in the event of
>> All that is well beyond the Surrey licence but I hope it will be useful
>> to future discussions.
>> For purposes of deciding whether a licence conforms to the Open
>> Definition the same procedure should be followed: consider the licence
>> first without considering other interpretative sources. If there is
>> ambiguity then see if the ambiguity can be resolved by reference to
>> surrounding circumstances such as community practise and licence drafter's
>> interpretation. If this process does not easily and clearly resolve the
>> ambiguity and the ambiguity affects conformance then the licence is not
>> unambiguously conformant and therefore does not meet the Open Definition.
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> Herb Lainchbury, Dynamic Solutions
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Herb Lainchbury, Dynamic Solutions
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