[Forking thread title so as to minimize noise for anyone who actually cares
about the Peel license ;)]

tl;dr: The problem in Robert's example is the UK government, not the
license. If real money were at stake for some reason, every well-advised
open licensor (including OSM under ODbL) would take exactly the same
position. Hopefully most will be nicer about fixing the problem than this
agency was, but the fix will be because of issues of reputation, or some
other legal obligation, not their license.

On Fri, Sep 9, 2016 at 10:45 AM Robert Whittaker (OSM lists) <
robert.whittaker+...@gmail.com> wrote:

> On 9 September 2016 at 18:19, Luis Villa <l...@lu.is> wrote:
> > Can you elaborate on the second point, Simon? Are you referring to the
> > "third party rights the Information Provider is not authorised to
> license"
> > language? If so, I'm afraid they've merely made explicit what is
> implicit in
> > all licenses - if there is third party material in a work that the open
> > licensor isn't authorized to license, then that material isn't licensed
> to
> > you, regardless of what the license says.
> Yes, but without that clause, the licensor is implicitly asserting
> that they do have the necessary rights to offer the licence, and if
> there did turn out to be problems later, the licensee would probably
> have some come-back on them.

Respectfully, I disagree. It is unlikely that a licensee using an open
license would have redress in this situation.

Most open licenses have a disclaimer that attempts to absolve the licensor
of liability in situations like this. In, for example, ODBL 1.0:

"Licensor specifically disclaims any and all implied warranties or
conditions of title [or] non-infringement..."

"Licensor is not liable for, and expressly excludes, all liability
for loss or damage however and whenever caused to anyone by any use
under this License..."

The effectiveness of such disclaimers may vary by jurisdiction—for example,
one commentator has suggested they may not be viable in the UK
But if they're a problem in OGL 1.0, they're also a problem in ODBL 1.0 and
just about every other open license.

[If what they actually claimed was that the material was "carved out"
(i.e., not licensed at all), so there was no liability even though UK law
says the disclaimer is ineffective... well, I'll just say I'm comfortable I
could find a UK lawyer to take that argument :)]

there doesn't seem to be any obligation on the
> licensor to point out that some parts of the dataset cannot actually be
> re-used under the stated licence.

For better or for worse, there is no obligation of that sort in any open
source license that I'm aware of, with the sole exception of a
patent-related obligation in MPL 1.0 Sec. 3.4(a). We took that out in MPL
2.0 ;)

Thoughtful open licensors address this problem by *voluntarily *creating
processes to vet IP and giving notice where there are issues. For example,
Eclipse and Apache have lots of IP vetting of new projects to avoid this
sort of problem (and I know of at least one case where it saved downstream
licensees where the license would not have done so). My understanding is
that Wikidata can't be used as an OSM source for similar reasons. And given
Robert's example, maybe the UK government should be pressed to do the same.

If this sort of provenance issue is a real concern, OSM should push data
sources to document and review their processes, and perhaps consider
improving provenance data in the database directly (so that the problems
are easier to fix once identified). Just don't look to licenses as a
solution (or in this case, see OGL as the problem).

Hope that helps clarify-
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