[Before addressing these technical legal issues, I should note that I represent the Wikimedia Foundation, not OSM/the OSM community. While I hope that in most cases the perspective of the WMF and the perspective of OSM are in alignment, OSM members and the OSMF should definitely seek their own legal counsel.
I'm also required by my ethical obligations to note that I'd be happy to discuss some of these issues directly with a lawyer representing OSMF, but my understanding is that there is no such lawyer at this time. If that changes, please let me know and I can happily discuss with them.] First, my comments to Paul, and then some comments/questions of my own. On Tue, Apr 29, 2014 at 1:52 AM, Paul Norman <penor...@mac.com> wrote: > See > > https://wiki.openstreetmap.org/wiki/Open_Data_License/Substantial_-_Guidelin > e for guideline text. > > > The Open Data License defines a term 'Substantial' which is then used > > in the License to define a threshold about when certain clauses come > > into effect. > > Substantial is a term defined in the relevant law, similar to fair use > or fair dealing under copyright law. We're not referencing the law at > all in the guideline. If the use is insubstantial, than the ODbL doesn't > come into play at all as you need no license. > Reminder that Simon has pointed out here quite recently that ODBL claims to be a binding contract that can apply when no license is necessary. > Is there any relevant case law on substantial? > Three qualifications here: I'm certainly not an expert in EU law; I'm trying to summarize the state of things at email length, not treatise-length; and it is not entirely clear that a court should or would rely on EU law to interpret this part of the license agreement. That said: my understanding is that there is not much EU CJ caselaw; as of 2012, only seven cases altogether about the database directive, and only two that touch heavily on the scope of "substantial". The key case on "substantial" is British Horseracing Board v. William Hill Organization ("BHB"): http://curia.europa.eu/juris/document/document.jsf?docid=49633&doclang=EN(There are surely local decisions that may also help inform an interpretation, but you'd probably have to talk to a local lawyer in your jurisdiction to analyze those, and even those seem to be fairly thin on the ground, especially post-BHB.) Per the directive and caselaw (paralleled by the ODBL), something can be substantial in three ways: it can be quantitatively substantial, qualitatively substantial, or substantial as a result of repeated and systematic extraction of insubstantial parts. (The trial court, and some commentators, had seemed to think it had to be *both* quantitative and qualitative - see Derclaye, p.111 below - but BHB is pretty clear that either is enough.) The BHB court had this to say about what "quantitative" means in this context: The expression ‘substantial part, evaluated quantitatively’, of the contents of a database ... refers to the volume of data extracted from the database and/or re-utilised, and must be assessed in relation to the volume of the contents of the whole of that database. (Para 70) This strongly suggests that a European court would evaluate "substantial" in the quantitative sense with regards to the entire 2B records in OSM, not with regards to the database the information was put into. It would be interesting to see what courts around Europe are finding as "substantial" in this sense; I see one reference to a French court that found that taking 15% was not quantitatively substantial, and the GRADE paper linked to from the wiki suggests it would have to be > 50%. But I suspect this would vary a lot based on the facts of the case, and that a skilled lawyer could raise or lower the number. And of course in the case of a database as large as OSM a court might try to change their mind. For qualitative, the key passage of BHB is: [S]ubstantial part, evaluated qualitatively, of the contents of a database refers to the scale of the investment in the obtaining, verification or presentation of the contents of the subject of the act of extraction and/or re-utilisation, regardless of whether that subject represents a quantitatively substantial part of the general contents of the protected database. A quantitatively negligible part of the contents of a database may in fact represent, in terms of obtaining, verification or presentation, significant human, technical or financial investment. (Para 71) In other words, a small chunk of a large database can be qualitatively substantial if the cost of "obtaining, verification, or presentation" of that small chunk was substantial. The court goes on to say that it doesn't matter if the small chunk is, by itself, valuable - what matter is the work done to put it into the database. What qualifies as a substantive "investment" is left as an exercise for the lower courts. (One German case I've found seemed to presume that 39,000 Euro was a substantive investment, but that was not the primary point being argued in that case so I wouldn't rely on the number being that low.) For "repeated and systematic", the BHB court said: The provision ... prohibits acts of extraction ... which, because of their repeated and systematic character, would lead to the reconstitution of the database as a whole or, at the very least, of a substantial part of it ... (Para 87) So repeated/systematic extraction that does not allow someone to reconstitute a substantial part of the database would not be substantial. The court justified this by saying that the purpose of this part of the directive was to prevent circumvention of the first two definitions of substantial, rather than to create a separate type of infringement. The other EUCJ case that I'm aware of that has touched on the question is Apis-Hristovich EOOD v Lakorda AD - http://curia.europa.eu/juris/document/document.jsf?docid=77503&doclang=en ; decent summary here: http://www.mondaq.com/x/75750/IT+internet/New+ECJ+Database+Decision But the case does not appear to be terribly relevant. Some pretty decent summaries of BHB and other relevant caselaw, FYI: - http://www.ivir.nl/publications/hugenholtz/EIPR_2005_3_databaseright.pdf - The Legal Protection of Databases: A Comparative Analysis, By Estelle Derclaye - available in the US on Google Books; search for "substantial part". - Survey of French cases: http://ssrn.com/abstract=1989031 If we accept this definition of > insubstantial as being true for geospatial databases in general, then > their entire database could be extracted. If its true for OSM but not > all other geospatial databases, we need to explain why. > I think it is pretty clear that this rule is only for OSM/ODBL, but it wouldn't hurt to make that more explicit. (It *has* to be only about OSM, because you can't judge whether something is substantial without knowing about the nature of the database (quantitative) and how the data was obtained (qualitative).) Few other comments: - It might be helpful to link to http://wiki.openstreetmap.org/wiki/Map_features when talking about Features, assuming those are the same concept, which I admit I'm still not 100% sure about? - It might be helpful to explain better why the page is focused on insubstantial rather than substantial. - The village/town distinction doesn't seem very helpful to me. If the goal really is to push out commercial projects, very few commercial projects are going to be viable at the town level - the vast majority will be national level, with a few exceptions for London/Paris/NY-level cities. So saying "you can use towns" would still block out most commercial use while perhaps allowing some small governments to do useful things. But I may be misunderstanding the goal here? - I find "This definition aims to:...Build a case for the "qualitative" interpretation of Substantial" to be slightly confusing - I *think* that what is meant is something like "This guideline attempts to clarify what uses would constitute a substantial qualitative use of OSM data" (perhaps implying that many important uses are not going to be quantitatively substantial?), but I'm really not sure. I would clarify or remove that. Hope this is helpful- Luis -- Luis Villa Deputy General Counsel Wikimedia Foundation 415.839.6885 ext. 6810 NOTICE: *This message may be confidential or legally privileged. If you have received it by accident, please delete it and let us know about the mistake. As an attorney for the Wikimedia Foundation, for legal/ethical reasons I cannot give legal advice to, or serve as a lawyer for, community members, volunteers, or staff members in their personal capacity.*
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