On Wed, Oct 28, 2009 at 1:19 PM, Ed Avis <e...@waniasset.com> wrote: > Matt Amos <zerebub...@...> writes: >>Dr Evil doesn't need an unlimited legal budget - he just needs to live >>in a country where non-creative data isn't copyrightable. > > ...and in a country where it is crystal clear that the OSM data is > 'non-creative'. That point is far from obvious to me.
it's crystal clear to me: OSM data represents what exists on the ground - it represents facts. the US definition of creativity is (paraphrasing) that two independent people doing the same thing come up with different outputs, each expressing individual creativity. i'd argue that if two OSM mappers mapped the same features over the same area then the output wouldn't differ significantly (i.e: by more than the tolerance of the GPS/aerial imagery/etc...). therefore OSM data is unlikely to be considered creative. > Even in the USA there is certainly enough meat in OSM for a straightforward > copyright infringement case, IMHO. If it were a collection of pure facts > with no expressive content and no scope for imagination or judgement then > I would agree that trying to enforce share-alike with CC-BY-SA is problematic. i don't agree. >>if we just wanted to give maps away for free then we'd PD it. if we >>want stronger copyleft than that, then we have to start thinking about >>enforcing those copylefts. > > Yes. But if enforcement comes at a cost, you must trade off how much > legal weaponry you want against the disadvantages of a more complex or > (in some ways) more restrictive licence. I lock the door of my house, > but it is not a worthwhile tradeoff for me to install barbed wire fencing, > searchlights or a moat. Even though there is a theoretical possibility > someone could break in, the deterrent of a locked door is sufficient in > practice. Even though the fact that something hasn't happened in the past > does not guarantee it won't happen, I can use the past few years of > experience as some justification for saying the current deterrent is enough. from discussions with lawyers and reading background case law, i'd say that CC BY-SA for OSM data is like leaving your front door wide open and a sign saying "there may or may not be a vicious dog, no-one has found out yet". > The question to ask is not 'is our legal framework absolutely watertight > in smacking down anyone, anywhere in the world, who violates the licence' > but rather 'is it a strong enough deterrent in practice to make sure that > share-alike principles are followed and promote free map data'? no legal framework is ever absolutely watertight. ODbL isn't watertight. CC BY-SA is a sieve. >>>>if we carry on licensing CC BY-SA we may get to the state where CC >>>>BY-SA is challenged. if the challenge is in the US, i think there's a >>>>good chance of OSMF losing, >>> >>>Would that be such a disaster? If such a precedent were set, then any >>>factual data derived from OSM would also be in the public domain in that >>>country, > >>PD isn't viral - any factual data derived from OSM might well be >>protected by other IP rights (e.g: database rights) reserved by the >>deriver. > > In the particular case of the US, there is no database right. fine, then privacy or publicity rights, trademark rights, patent rights, or any other IP. the rights aren't important - what's important is that a failure of CC BY-SA is a failure of share-alike. >>additionally, there's the difference between what CC BY-SA requires >>you to share and what ODbL requires you to share. sure, CC BY-SA might >>keep the tiles in the "free domain", but it doesn't keep the data in >>the free domain. > > This depends on what exclusionary rights OSMF and the contributors have > over the data, which is what we are discussing. > > If the data is subject to copyright then yes, CC-BY-SA does keep it free. > If copyright does not apply and there is no database right to consider, > then CC-BY-SA does not work, but I doubt that any other licence would. > You can try making a contract or EULA as the ODBL does, but that is flaky; > if the data is truly in the public domain, then courts are unlikely to > accept that adding any amount of legal boilerplate will change that. flaky is better than nothing. CC BY-SA doesn't work and database rights aren't widespread. that doesn't leave much to work with. > If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness > and enforceability, you should do the same for ODBL. I don't think that > is always the case here. yes, let's do the analysis: CC BY-SA in NL, BE: databases are copyrightable, making the ported license strong. the non-ported less so, but the fundamental protections are still there. ODbL in NL, BE: EU database directive makes the license strong. CC BY-SA in wider EU: copyright provisions vary - some countries would follow the creativity model, others would respect the "sweat of the brow" and give some protection. ODbL in wider EU: database directive makes the license strong. CC BY-SA in other countries: copyright provisions vary - some countries would follow the creativity model, others would respect the "sweat of the brow" and give some protection. ODbL in other countries: some countries would respect the "sweat of the brow model" and give some protection, in others the ODbL can be enforced through its contractual provisions. so basically, in NL/BE it doesn't really matter - both licenses are strong. in the wider EU the ODbL is, on average, stronger. outside of the EU the two licenses either give similar protection or the ODbL is stronger. cheers, matt _______________________________________________ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
