You have a point, I suppose, that 'for all lawful purposes' could conceivably create an independent cause of action if a downstream user subsequently breaches the law. Nevertheless, it would create a cause of action only to the extent that the licensor is harmed by the breach. If I lend my neighbour Lizzie an axe to cut brush, and Lizzie instead uses it to murder her parents, I am harmed only to the extent of the loss of the axe and have no right to recover beyond that. (Unless, somehow, my reputation is harmed, but most courts take a very dim view of reputational injury short of direct slander.) The city of Calgary is not harmed directly if someone uses its address data to commit a crime. If the Queen's Peace is breached, the Queen's Majesty has ample means of redress and there is no need for the law to create an independent cause of action for the city.
That said, the wrong that is triggered by the breach of license is copyright infringement, and most common-law jurisdictions provide for statutory damages for copyright infringement that are steep enough to carry a substantial effect in terrorem, whatever the actual likelihood is that suit would be brought and that the plaintiff would prevail. In any case, the whole argument is meaningless until the problem of the indemnification clause is addressed. OSMF cannot indemnify anyone against misuse of the open data. Those terms are simply unacceptable, and if they cannot be changed, we must forgo using it. On Wed, Jul 20, 2016 at 9:52 AM, Frederik Ramm <[email protected]> wrote: > Hi, > > On 07/20/2016 09:54 AM, Pavel Machek wrote: > > Of course we can exclude unlawful > > purposes. > > No. > > > Above says you are allowed to do anything as long as it is > > legal. Of course you are not allowed to do anything illegal. That's > > implicit, that's what the laws are for. > > No. You are mixing up different levels of law. Yes it is forbidden to do > illegal things; but it is not *us* who enforce that. > > > Of course you are not allowed > > to use OdBL licensed data to do anything unlawful. > > If someone uses OpenStreetMap data to kill someone, then the OSMF cannot > sue them for breach of license. The person can be prosecuted for > violating the law, but not sued for breaching the contract. > > Upholding the law in your respective country is not a part of what our > license requires. Other people (e.g. your country) might require it of > you, but we don't. > > If you buy a kitchen knife and then use it to kill your neighbour, this > doesn't invalidate the sales contract for the kitchen knife. > > It is a mistake that many people make. If you sign a contract that says > you will not do X, and then you do X (in breach of the contract) many > people will say "that was illegal". But it wasn't illegal, it was just > violating a contract you had with someone else. These are totally > different levels - what someone else requires of you in a contract, and > what your legal system requires of you because you live in the relevant > jurisdiction. > > Bye > Frederik > > -- > Frederik Ramm ## eMail [email protected] ## N49°00'09" E008°23'33" > > _______________________________________________ > Imports mailing list > [email protected] > https://lists.openstreetmap.org/listinfo/imports >
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