[License-discuss] Discussion Request: Autonomous Commons Dedication 1.0 (ACD-1.0) — one threshold question on Sections 3 and 4

[横井雄太]

All,

Rather than simply bumping my earlier request for broad feedback, I would
like to narrow the discussion to one threshold question about Sections 3
and 4.

Even a brief view on this one point would be useful. I think it can be
considered independently of the patent, machine-learning, moral-rights, and
license-proliferation questions.

Since my original post, I have been reading the 2020 License Review
discussion concerning the Unlicense.

I do not regard approval of the Unlicense as controlling precedent for
ACD-1.0, particularly because it was considered as a legacy license rather
than as a new-license submission.

The discussion is nevertheless useful because it exposes both sides of the
problem ACD-1.0 is trying to address:

   - a public-domain dedication may not operate effectively in every
   jurisdiction; but
   - where a dedication does operate fully, there may no longer be a right
   remaining in the Dedicator’s hands over which a licence needs to operate.

ACD-1.0 attempts to avoid making the recipient resolve the first question
before knowing whether the Work may be used.

Section 2.4 says:

«“Sections 3, 4, 5, and 6 are independent of one another. Each is granted
on its own footing and none is conditioned on the failure of another.”»

Section 3 attempts to surrender the Covered Rights.

Section 4.1 separately makes a complete present grant:

«“The Dedicator grants You a worldwide, royalty-free, non-exclusive,
irrevocable, perpetual, sublicensable, and transferable licence to exercise
all Covered Rights in the Work for any purpose whatsoever.”»

Section 4.4 then says:

«“The licence in Section 4.1 is granted independently of Section 3 and does
not depend on Section 3 being ineffective. Where Section 3 is effective,
this Section is redundant but not void, and it remains available to be
relied upon by You.”»

The intended recipient-facing result is simple:

a recipient should not have to determine whether Section 3 succeeded in a
particular jurisdiction before relying on the freedoms expressed by ACD-1.0.

My threshold question is whether the current text reaches that result using
a legally coherent description of the relationship between the dedication
and the licence.

I see two possible analyses.

Reading A — the licence remains independently available.

Section 4.1 is granted presently and unconditionally. Its existence never
depends on failure of Section 3.

If Section 3 fails, Section 4 supplies the permission.

If Section 3 succeeds only partly, Section 4 applies to whatever Covered
Rights remain.

If Section 3 succeeds fully, Section 4 has no practical work to do, but the
prior independent grant is not thereby invalidated.

That is what the present phrase “redundant but not void” is intended to
express.

Reading B — the grant is independent, but successful surrender removes the
right on which it would operate.

Under this reading, Section 4.1 is still a present and unconditional grant,
and it still solves the recipient-facing problem wherever any Covered Right
remains.

But once a particular Covered Right has actually been surrendered, it may
be inaccurate to say that the licence over that right remains “available to
be relied upon,” because there is no longer an exclusive right requiring
permission.

The practical result for the recipient is the same under both readings:

   - if the right is gone, permission is unnecessary;
   - if the right remains, Section 4.1 supplies it.

So my concern is not whether the recipient remains free.

It is whether Section 4.4 describes the legal route accurately.

The narrow question I would especially welcome views on is therefore:

Is “redundant but not void, and it remains available to be relied upon” a
sound description of an independently granted licence after the
corresponding Covered Right has successfully been surrendered?

If not, would the better analysis be that the architecture itself is sound,
but Section 4.4 should simply avoid making a claim about continued
operation over rights that no longer exist?

Put another way, I am trying to distinguish between two possible problems:

   1. Architectural: a dedication and an unconditional present licence
   should not be structured as independent concurrent footings at all; or
   2. Drafting: the independent architecture is sound, but Section 4.4
   describes the successful-dedication case too strongly.

If the first is the problem, I would rather know that before refining
secondary provisions.

If the second is the problem, that suggests a much narrower revision.

And if the present wording is already coherent, I would rather leave the
fixed text alone than revise it unnecessarily.

I have deliberately left Section 5’s covenant not to assert, the patent
provisions, machine-learning provisions, machine-generated material,
moral-rights provisions, and the separate license-proliferation question
outside this message so that they do not obscure this one point.

The ACD-1.0 text remains the same fixed text circulated with my original
discussion request:

https://yutapr0117-design.github.io/portfolio/LICENSES/ACD-1.0.txt

I am not reattaching it because the text has not changed, and I do not want
a new attachment to suggest that a revised version is being circulated.

Even a short reaction to the Section 3 / Section 4 relationship would be
very helpful.

Best regards,

Yuta Yokoi
License Steward
Autonomous Commons Dedication 1.0 (ACD-1.0)
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