From: Luis Villa [mailto:lvi...@wikimedia.org]
Sent: Wednesday, April 30, 2014 10:09 AM
To: Licensing and other legal discussions.
Subject: Re: [OSM-legal-talk] Guideline review: Substantial
Without going further into the details of the many drafting shortcomings
of ODBL (which, to be clear, are partially my fault!) suffice to say
that I think that the interactions of 6.0 and 2.2(c) are not
well-defined, especially in jurisdictions where there is no applicable
statutory law, and/or where applicable caselaw says there are no
database rights.
I view 6.0 as equivalent to 2.a.2 from CC 4.0 licenses, which state that
you do not need to comply with the license where fair use or similar
applies. In the ODbL case you might be dealing with a jurisdiction where
fair use type rights don't exist because data-type licenses are only
under contract law. I haven't seen this as a practical issue for three
reasons:
1. The ODbL doesn't impose requirements in a number of use cases (4.5 and
6.2 most obviously), making it a moot point in those cases
2. Most of the interesting use cases wouldn't be fair use anyways, dealing
with using most or all of the database for commercial purposes in a
public manner
3. I live in BC, where was a case involving someone doing essentially what
I do for OSM mapping and it was covered by copyright. The OSMF is in the
UK, where database rights exist.
I agree that in practice, courts are likely to find ways to work around
it. But the EU CJ was quite explicit in BHB about comparing to the
entire size of the dataset, so best not to rely on that as a primary
tool.
Something else that hasn't been touched on is the crowd-sourced nature
of OSM and use of other databases. Regardless of the exact threshold for
substantial, I can easily imagine a scenario where a sub-set of OSM is
not a substantial part of OSM, but is entirely from a smaller
third-party database and is a substantial part of that third-party
database.
I frankly don't have a clue how this would be considered. I'd expect the
third-party database owner would have no problem suing in case of a
license violation (e.g. failure to attribute), but could the OSMF?
For that matter, how does this work with Wikipedia? Say a European
Wikipedia contributor assembles a database and then inputs that into
Wikipedia. How are those database rights treated?
While I don't like the 100 feature reference (it seems awfully arbitrary
to me, and small) it could be salvaged if one explained _and justified_
that in the common case, mapping 100 features is likely to represent a
substantial investment of time, effort, etc., in gathering the data. I
just don't know enough to know if that is doable.
Is 100 features qualitatively substantial? I'd say, it depends. 100
place=village nodes with no other tags mapped from aerial imagery is
probably not qualitatively substantial. 100 POIs tagged in great detail
might be.
Does the fact that mappers do not receive compensation from the OSMF
influence what qualitatively substantial is? Does the small OSMF budget?
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