Re: [OSM-legal-talk] Warning about not mapping military areas
Hello list, some things come to mind 1) The Foundation is bound by laws that govern its own jurisdiction. (obligatory?) Other laws shall be respected to the extend the Foundation chooses to. (facultative?) 2) There are 3rd party rights, that the Foundation observes globally. Under its Contributor Terms¹ the Foundation: “respect[s] the intellectual property rights of others.” 3) I have found nothing else at first glance. I have also found no rules concerning classified material under facultative law. There is a a catch-all element that allows the Foundation to remove “incompatible” data¹. I would argue that this is mostly concerned with license compatibility or grossly misplaced contend which could not be viewed as a contribution to a map at all. Provided disputed data is not protected under some intellectual property right (I see us pretty deep into fanatasy-land already), we probably might not want to burden the Foundations guardians with becoming the wikileaks-of-maps. I do not think OSM or the Foundation should intervene and forbid the mapping of military installations, that are publicly announced and quite probably public knowledge. The argument to disallow mapping them is a very abstract threat or danger. There was no concrete way stated in which a publicly known military base would be actually vulnerable through its presence on a public map. No specific risk was named nor assessed. The abstract possibility of unknown danger is no ground to intervene, no matter how afraid or concerned one is. Such rules would be a) irrational and b) probably violating constitutional rights and the rule of law in many democratic states. Privately you may behave as irrational as you want to, but to justify common rules there’s only reason we have. Unless there is a specific danger or a substantiated request by an recognized authority, we should not intervene. 4) I agree with the notion, that the purpose of the Foundation or OSM is /not/ to advise as to possible legalities that do not concern the laws the Foundation observes (see 1) Such an advise (i.e. a warning) could be viewed as an endorsement of such laws or a certain reading. Given the multiplicity of laws around the world and the diversity of opinions about them such advice would overstretch OSMs cause greatly. I have serious doubts if any agreement could be reached about the contend of any advice. 5) I would even go so far and claim that the general advice to “stick to the law when mapping” is contrary to OSMs cause. Because OSM is about freedom. Freedom is what allows us agency. In other words: freedom allows you to state yourself as the subject and originator of our own deeds. I consider OSM to be an exercise in freedom, as sports are an exercise in equality, fairness and the principle of achievement. OSM is an endeavour to identify what freedom may look like, if taken seriously. Since Kant this freedom includes the freedom to reject a law, if considered unjust. His formulation of autonomy concludes that rational agents are bound to the moral law by their own will². Kant did not prove and did not claim to have found the free will within human beings, he states it as an aspiration, as something we wants to believe in, to view ourselves as the makers of our own history, not its victim or bystander. GWF Hegel even goes so far as to claim, without the presumption of the freedom of others, we are unable to perceive ourselves as free. To be truly free, OSM must respect the autonomy of its contributors as long as OSM itself is not in violation of the law it is bound to and its own rules. Thanks Tom ¹ https://wiki.osmfoundation.org/wiki/Licence/Contributor_Terms ² https://en.wikipedia.org/wiki/Kantian_ethics ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Brexit & EU database rights
Simon, sorry for reopening. > This was the subject of the original message in this thread. The > situation post December 31st 2020 is such that protection for sui > generis databases will remain for database published before that date in > the UK till the protection term runs out. In the case of OSM when the 15 Thanks, I see you are referring to art. 58 of the withdrawal agreement https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1580206007232=CELEX%3A12019W/TXT%2802%29 The UK government explains this as follows: “Database rights that exist in the UK or EEA before 1 January 2021 (whether held by UK or EEA persons or businesses) *will continue* to exist in the UK *and EEA* for the rest of their duration.” As far as I understand the article, however, there is protection within the UK for European entities. Yet, I can’t find a provision which covers the issue vice versa, i.e. an UK entity would loose protection within EEA. I think the accepted term for this is ’reciprocity gap’. I am not sure if my understanding of english legal communications is good enough for this. The 15y period was not intended to provide protection against change of law. I suppose it’s a protection of investment for a certain amount of time. Without EU membership the premises for the law changes. According to this, OSMF might loose standing in respect to the directive in german courts. (EEA too?) Thanks Tom ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Brexit & EU database rights
Hi all, Am Sonntag, 13. Dezember 2020, 15:58:48 CET schrieb Simon Poole: > The relevant bit of the directive is in article 11. As you can see the > rights are dependent on being domiciled in the EU, not on the physical > location of the "database". I would need to check up on the UK Do the legal contributors have formed an opinion towards this, already? Seeing the Foundation being situated in the UK, and the absence of any agreement acc. to art. 11 III, it looks like the foundation is loosing its entitlement acc. to art. 11 II of the directive. German courts adhere to the „modified seat of management rule“ since 2002 (BGH NJW 2002, 3539), meaning some capacity to sue and be sued. OTOTH liability for associates is personal and unrestricted. For Germany, it looks like there is some entitlement on behalf of FOSSGIS. The governing agreement (OpenStreetMap Foundation Local Chapters Agreement) does not grant any derivative rights without additional agreement, § 7.1 Conduct. Am I missing something? Tom ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] OdbL: Section 4.6, Does data/methods have to be released on public Produced Work?
Thanks for the clarification, Kathleen. > OSM does not contain residential quality of land. Even assuming there > exists a Derivative Database with nontrivial transforms, that would only > cover the shapes of the polygons. Actually quality scores would be not be > subject to sharealike, per the Collective Database Guideline. I understand you indicate towards: > Thus, an OSM dataset used in combination with a non-OSM dataset will be > considered a Collective Database, and will not trigger share-alike when: > the non-OSM data adds a particular type of geometry or data for a primary > feature that was not already present within a regional cut, and the added > feature data includes no OSM data; 1) We are not sure, if the new polygons somehow derive from OSM data. If the polys are either trivial or completely non-OSM, they add a geometry, not already presend and includes no OSM data. Therefor it will not trigger share-alike. #trivial To my eyes the polygons seem to be roughly drawn from OSM data and in other cases arbitrarily – possibly derived from local knowledge. You can find german comments, rather generic ones. These independently drawn partitions of land seem to reflect somewhat inaccurate or rather vague estimates of various properties, such as noise pollution, quality of view or perhaps some worth estimates. I could not see anything that is verifiable, according to OSM standards. But I may be very wrong. At a quick glance this seems trivial and of little use for OSM. Perhaps if those scores represented paid prices or actual rents the polys would somehow become data about something. But I couldn’t find any indication for that. 2) Those scores add a type of data for a primary feature not present in OSM and includes no OSM data already. So, as Kathleen already pointed out, they quite probably won’t trigger share-alike. Maybe the scores are calculated from other OSM features in some fashion and is therefor somehow already present in OSM. But I don’t see how. ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] OdbL: Section 4.6, Does data/methods have to be released on public Produced Work?
Hi Lars-Daniel, Kathleen, > The process doesn't seem to be trivial, since the edges of many polygons go > across areas, where no OSM elements could have been used as a reference. So > OSM dataset has either been changed or augmented using 3rd party reference > (knowledge, imagery, data etc.) to create the product. Those changes are > share-alike by ODbL. The Trivial-Transf.-Guideline asks a trivial transformation to be judged from a non-technical point of view. The quality of the transformation itself should be non-trivial. You explained, how the edges of some polygons go along edges that may be very difficult to obtain, as they can’t be found within OSM. While Kathleen seems to assume that they are directly and easily derived from OSM data. Is that right? OTOH that doesn’t seem important under the TTG. The TTG asks us to estimate the modification or addition itself. You seem to be certain, the modifications are only possible by combination of 3rd party data and OSM data. From that perspective, they don’t seem very trivial to me. Kathleen? Thanks Tom ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ZIP codes from OSM in non-compatible licensed dataset
> Extracting than 100 elements (non repeatable) from the databse accounts > for substantial. While someone might easily disagree, I would, however, agree with that. By taking a little piece from a huge database, one cannot deny a database to be a substantial investment as a whole. That way you can cherry pick your way to huge chunks of said database piece by piece, argueing nobody ever took any piece which constituted a substantial investment. That argument about the vast number of postal codes in comparison escapes me. > Costs has nothing to do with the license. I also agree. Copyright law does come into effect much earlier than database protection. Cheers Tom ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Proposal for a revision of JA:Available Data
> I am quite ignorant about the EU directive and it is beyond my ability to > understand what is stated in it. The problem is, I don’t have the slightest idea how this all plays out in Japan. The only thing I would imagine is that there are some similiar protection laws because Japan signed the TRIPS agreement. Art. 10 par. II of TRIPS requires some protection. That is probably as close as I can get about your situation. I think there may be some provisions found in ACTA, which Japan seems to have signed. So for OSM hosters in Japan, there could be implications. Does anybody know? Most servers are however located within the EU (for now), so EU law should remain our focus. > someone publishing data about their OWN shops (or other types of objects) → > not passing barrier of protection > > someone publishing data about shops where there was "substantial" effort into > making database → > protected That would be my line of argument, because compiling information about _your own shop_ will be trivial most of the time. There are, of course, other situations. However opening hours is such an ordinary piece of data, it will seem ridiculous someone claiming any sort of effort while compiling it for his/her own business. Within the few cases I have found, the parties claim hundreds of thousands of € in costs for creating databases. The distinction is not 100% safe, but in my opinion this constitutes an acceptable guideline. Any effort of a third party gathering information about others should for safety be considered substantial. At last – what’s the difference in reading a printed sign on the street and a shops website stating the opening hours for our purpose? Opinions? About these TESCO claims… some seem quite outlandish indeed. ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Proposal for a revision of JA:Available Data
> because it would be unfair if websites of small business are allowed > and those of large comanies are not. I don’t seem to be able to follow the problem here, hope you can help me: how can a collection of opening hours be a protectable database under directive 96/9/EG (speaking for the EU)? > Maybe it can be argued that company has no substantial investment > here? In neither obtaining nor verification nor presentation? > > Presentation is simple one - there is clearly no substantial > investment here. Not sure about what is understood as "substantial" > for obtaining or verification. You’re on the right path here. First, only investments pertaining to obtaining or verification are understood as investments under art. 7 par. I directive 96/9/EG. The expenditure that incurred in the process of generating that data does not. Par. 46 of the court (EuGH, 09.11.2004 - C-203/02) adopted opinion of the advocate general states: « All the language versions thus allow of an interpretation according to which, although ‘obtaining’ within the meaning of Article 7(1) of the Directive does not cover the mere production of data, that is to say, the generation of data, (10) and thus not the preparatory phase, (11) where the creation of data coincides with its collection and screening, the protection of the Directive kicks in. »¹ My question would be: how can a chain-business or even a franchise business claim any investment in obtaining the opening hours of their associated places of operation? In many cases they even dictate these things, or simply ask the franchisee, or even demand the operators to enter them into a list themselves. I agree that the term ”substantial” rises some dificulty and I have some trouble finding good guidelines. ¹ http://curia.europa.eu/juris/document/document.jsf?text==48761=0=EN=req==first=1 ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
