[od-discuss] Open Government License - Surrey 2.0

[Andrew Rens]

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
>

and


> I think a court could be concerned with the intentions of the legislator
> not with the interpretation of the licensor (except to moderate any
> redress).
>

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
> licence.
>

Which would make their stated interpretation especially if it widely
publicised from the outset more important BUT only in the event of
ambiguity.

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.

Andrew



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