[od-discuss] Open Government License - Surrey 2.0

Sun Mar 29 10:26:11 UTC 2015

I’m +1 on the licence too.

From: od-discuss [mailto:od-discuss-bounces at lists.okfn.org] On Behalf Of Peter Murray-Rust
Sent: 28 March 2015 14:55
To: Herb Lainchbury
Cc: od-discuss at lists.okfn.org
Subject: Re: [od-discuss] Open Government License - Surrey 2.0

+1 the licence (sic) conforms.

On Fri, Mar 27, 2015 at 7:57 AM, Herb Lainchbury <herb at dynamic-solutions.com> wrote:

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:

http://opendefinition.org/od/

Please use +1 for agree and -1 for disagree.

You can find a discussion here:

https://lists.okfn.org/pipermail/od-discuss/2015-February/001278.html

and here:

https://lists.okfn.org/pipermail/od-discuss/2015-March/001293.html

You can find the text for the license here:

OGL Surrey v2.0

http://data.surrey.ca/pages/open-government-licence-surrey

Thank you,

Herb

On Wed, Mar 18, 2015 at 10:54 AM, Andrew Rens <andrewrens at gmail.com> wrote:

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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Herb Lainchbury, Dynamic Solutions

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http://www.dynamic-solutions.com

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Peter Murray-Rust
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Unilever Centre, Dep. Of Chemistry
University of Cambridge
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