[OPEN-ILS-DOCUMENTATION] Equinox license to DIG

[Bradley M. Kuhn]

[ Note: I'm not a subscriber to
  <open-ils-documentation at list.georgialibraries.org>, so please Cc
  <evergreen at sfconservancy.org> and/or <bkuhn at sfconservancy.org> on
  responses.  Also, it is probably useful to keep Conservancy's General
  Counsel, <tony at sfconservancy.org> included as well.  Thanks! ]

On Wed, Dec 14, 2011 at 11:24:20AM -0500, Jason Etheridge wrote:
>> For a specific example, see the bottom of
>> http://www.esilibrary.com/esi/docs/?p=3D771

the bottom of that URL currently reads:
>> Copyright: 2011 Equinox Software. Available for redistribution with
>> proper attribution under CC BY-NC-SA 3.0 license.

>> Note: The Documentation Interest Group (DIG) for the Evergreen
>> Project is granted an overarching and exclusive CC BY-SA 3.0 license
>> for any Evergreen feature set documentation posted herein. The CC
>> BY-SA license is only applicable to DIG and only applies to
>> documentation for Evergreen feature sets.

Dan Scott wrote at 11:59 (EST):
> Thanks, Jason; I'm going to CC this to the SFC to ask whether that

Dan, thanks for bringing Conservancy into the discussion!  This is
indeed something that we can help with (and should be involved with
anyway, pursuant to the fiscal sponsorship agreement between Evergreen
and Conservancy).

> My primary concern is that that "Documentation Interest Group (DIG)
> for the Evergreen Project" might not have any status as a legal entity
> and therefore a license granted to it might be meaningless.
...
> Arguably, it's the SFC as the umbrella non-profit organization for the
> Evergreen project that has legal standing, so it might be the case
> that the exception needs to be granted to the SFC.

Both these are important points, and I address them in (2) below.
However, I believe my issue (0) below is the most salient one and I
suggest that it be discussed first.

Jason Etheridge wrote at 12:24 (EST):
>> Granting a license isn't legal advice; it's granting a license.  And
>> intent should matter.

Licensor intent is indeed often considered by courts and others in
interpreting a license.  However, given that we're discussing this, I'd
suggest we discuss the current license grant text, and perhaps come to a
mutually agreeable resolution on changes to it, rather than merely
relying on the grant text as written.

To that end, there are three issues that I'd like to raise here:

0. Could you perhaps tell us what Equinox seeks to accomplish by issuing
   separate CC-By-NC-SA and CC-By-SA licenses?

   Specifically, Jason wrote:  
   >> Equinox really does want DIG--as we all understand DIG--to use
   >> this documentation without any strings other than CC-BY-SA.  But
   >> Equinox also wants the NC license in place for anyone other than
   >> DIG who gets the material directly from the website (as opposed to
   >> getting it through DIG).

   This confuses me, because I'm trying to figure out what Equinox's
   enforcement plan is for the NC clause.  Suppose someone takes
   distribution of the material from Equinox's website.  Either one of
   two things are true: 
       (a) it's the same material they could receive from the Evergreen
           project itself, under CC-By-SA, since DIG (see (2) below) can
           redistribute under CC-By-SA at will.

       (b) the material differs slightly, and includes some copyrighted
           works that Equinox hasn't licensed to Evergreen.

   Consider (a) first.  Suppose Equinox finds someone using the material
   commercially, and says: "Stop!  You don't have a license, that stuff
   was CC-By-NC-SA".  The answer from the would-be violator is simple:
   "Oh, we got our copy from Evergreen project, licensed to us as
   CC-By-SA, so we can copy/modify/distribute it commercially".  I don't
   see what Equinox has actually accomplished in that scenario.

   Now consider (b).  If (b) is the case, the existing "Note: " text
   above doesn't accomplish the licensing goal at all.  If Conservancy
   (the legal entity of Evergreen, and therefore the legal entity of
   the DIG by extension) takes a copy of the documentation under CC-By-SA
   and redistributes it, then it will be identical at all times, and thus
   my analysis on (a) above would apply.

   Meanwhile, If Equinox wants to do (b) and provide slightly different
   versions under CC-By-NC-SA and CC-By-SA, then the extra "Note: "
   isn't needed.  Equinox can issue versions under plain CC-By-SA to
   Evergreen on some regular interval, and only *those* versions of the
   material will be so-licensed.  This sort of licensing is a common
   practice among companies, and one I'm not a fan of, but it at least
   would make some sense with regard to enforceability of the NC
   clause.  But, anyway, with the "Note: " worded as it is above, that
   outcome isn't accomplished here in any event.


   To get to the bottom of this, perhaps it would be useful if Equinox
   could share the activities it seeks to prevent by doing
   an NC license on its own website, given that Evergreen will
   redistribute the same or similar material to the world under CC-By-SA
   anyway.

   >> If, however, the DIG can be the recipient of a license exception, then
   >> given that the DIG membership is consituted of anyone who adds
   >> themselves to
   >> http://www.evergreen-ils.org/dokuwiki/doku.php?id=evergreen-docs:digparticipants,
   >> in theory anyone could add themselves to that list and apply the
   >> CC-BY-SA license.

   This part unfortunately leaves me more confused.  Based on what you
   say above, anyone on that DIG list has the right to redistribute the
   material under CC-By-SA, including putting it up their own website, or
   committing it right into the Evergreen repository.  Once that's done,
   anyone who seeks to avoid the NC clause would just take the material
   from the plain CC-By-SA source.  So, the more I read this thread, the
   more I don't really see what Equinox will accomplish here by making
   its own distribution restricted to NC while every other distribution
   in the world of the same material will be plain CC-By-SA.

   I hope Equinox can shed some light on their intentions with this
   licensing structure.

1. It's contradictory to call CC-By-SA an "exclusive license".

   [ This issue may be moot depending on what discussion of (0) above
   yields. ]

   The "Note: " text above says that the CC-By-SA license is granted as
   an "exclusive license".  This is a contradictory statement.  CC-By-SA
   is absolutely *not* an exclusive license, so calling it such just
   confuses the matter.
 
2. Licensing for Evergreen comes via Conservancy, not DIG.

   [ This issue may be moot depending on what discussion of (0) above
   yields. ]

   While Conservancy interprets the intent of the existing license text
   above to mean that DIG -- and therefore by extension Evergreen -- and
   therefore by extension Conservancy itself -- is the ongoing recipient
   of the CC-By-SA license for any material with that "Note: " attached,
   Dan is correct that it's confusing to grant a special license to an
   entity that isn't a real legal entity.  Therefore, we'd suggest that
   if the text above is to be used, it should have the following edits:
      s/The Documentation Interest Group (DIG) for the Evergreen Project/The Software Freedom Conservancy, Inc. (Conservancy), home of the Evergreen Project/
      s/DIG/Conservancy/g
-- 
Bradley M. Kuhn, Executive Director, Software Freedom Conservancy