Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Well the more basic question is: would you in the end have a marketable
product that you could sell in places where people actually have money?
And the answer is likely no.

Simon




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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Frederik Ramm]

Hi,

On 06/29/2015 05:21 PM, John Bergmayer wrote:
> Right, same in the US.  As I mentioned, intended third party beneficiaries 
> may enforce a contract against one of the parties.  But a third party cannot 
> be bound by a contract entered into by others.

This was discussed at *very* *great* *length* before the license change.
The basic question was: Could someone go to a relatively "lawless"
country, extract OSM data there and make it into a new product to be
sold outside of the ODbL in markets that we would consider important?

I can't recap the whole breadth of the discussion here (legal-talk
archive is your friend if you really want), but the gist of the
discussion was that if this happened, while it may be cleverly
exploiting legal loopholes, it would certainly be a gross violation of
the spirit of our license and we would certainly not shy away from
calling the party out for what they're doing, which would likely damage
their business.

The "moral stick" is probably the strongest weapon in our arsenal
anyway, looking at the size of our legal battle chest ;)

Bye
Frederik

-- 
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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Am 29.06.2015 um 17:00 schrieb John Bergmayer:
> On Sat, 27 Jun 2015 17:55:08 +0200, Simon Poole  wrote:
> 
>> A condition of having a valid licence to use OSM data is providing a 
>> suitable way of pointing out the conditions of use of said data to your 
>> users/customers/etc (which is relaxed a bit for produced works). Don't 
>> provide that, you don't have a valid licence with all the related 
>> consequences. If you have information that this obligation is not being 
>> fulfilled by distributors of OSM based products, please report it to the 
>> OSMF/LWG.
> 
> The problem being, of course, assuming there is no property right, there's 
> only a contract, not a license. Contracts are not enforceable against third 
> parties. 
> 

That is naturally clear, however a) nobody is claiming that there are no
as in: none at all, property rights in OSM data, and b) I was only
referring to the original distributor of the OSM data/derived data.

Besides that, there are other statues that could be brought to the table
in some of the major markets for OSM based products (for example unfair
competition legislation in Germany) that would hurt substantially (the
OSMF would naturally not be party to such action).

Simon



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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[John Bergmayer]

On Jun 29, 2015, at 11:18 AM, Richard Fairhurst  wrote:

> It's possible they may be. OSMF is based in England & Wales, and the
> Contributor Terms say "This Agreement shall be governed by English law
> without regard to principles of conflict of law".
> 
> Under the Contracts (Rights of Third Parties) Act 1999, "a person who is not
> a party to a contract (a 'third party') may in his own right enforce a term
> of the contract if... the term purports to confer a benefit on him”.

Right, same in the US.  As I mentioned, intended third party beneficiaries may 
enforce a contract against one of the parties.  But a third party cannot be 
bound by a contract entered into by others.

--
j...@bergmayer.net






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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Richard Fairhurst]

John Bergmayer wrote:
> The problem being, of course, assuming there is no 
> property right, there's only a contract, not a license. 
> Contracts are not enforceable against third parties. 
>
> A person who makes OSM data available without 
> conditioning it on acceptance of the same contract, 
> may indeed be in violation of *his* contract. But the 
> people who take that data aren't bound by anything. 

It's possible they may be. OSMF is based in England & Wales, and the
Contributor Terms say "This Agreement shall be governed by English law
without regard to principles of conflict of law".

Under the Contracts (Rights of Third Parties) Act 1999, "a person who is not
a party to a contract (a 'third party') may in his own right enforce a term
of the contract if... the term purports to confer a benefit on him".

But this is way above my pay grade.

https://en.wikipedia.org/wiki/Contracts_(Rights_of_Third_Parties)_Act_1999

Richard



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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[John Bergmayer]

On Sat, 27 Jun 2015 17:55:08 +0200, Simon Poole  wrote:

> A condition of having a valid licence to use OSM data is providing a suitable 
> way of pointing out the conditions of use of said data to your 
> users/customers/etc (which is relaxed a bit for produced works). Don't 
> provide that, you don't have a valid licence with all the related 
> consequences. If you have information that this obligation is not being 
> fulfilled by distributors of OSM based products, please report it to the 
> OSMF/LWG.

The problem being, of course, assuming there is no property right, there's only 
a contract, not a license. Contracts are not enforceable against third parties. 

A person who makes OSM data available without conditioning it on acceptance of 
the same contract, may indeed be in violation of *his* contract. But the people 
who take that data aren't bound by anything. If someone obtains a stash of OSM 
data, stripped of all attribution and legalese, then, upstream, someone may 
have violated a contract. But unless there's some sort of intellectual property 
right, people who obtain OSM data in this way aren't bound by anything.

This is why IP rights are so valuable! You don’t require a continuous chain of 
legal documents.  If there is an IP right, then if the licensing info is 
stripped off, then a user has no right to the data to begin with. 

On the other hand, if everyone is being a good actor and, when they are further 
distributing OSM data, attaching the ODbL, there is a contract.  But I’m not 
sure who the contract is between—a third party can’t enter into a contract on 
behalf of OSM.  So the contract would probably be between the third-party 
distributor and whoever takes the data from it.  However, OSM might be able to 
enforce that contract, as a third-party beneficiary.  (Third parties who are 
the intended beneficiaries of a contract can sometimes enforce contracts they 
are not parties to—this is very different than third parties being bound by 
someone else’s contract.)

[I’m a new subscriber to this list, so apologies if this message isn’t 
formatted or threaded properly.  Also, this is just based on US law and common 
law generally.  Details might be different in civil law jurisdictions. Finally, 
while IAAL, this is not legal advice, and no one reading this is my client. ]

—
john

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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Am 27.06.2015 um 17:02 schrieb Tom Lee:

> 
> But of course OSM extracts and snapshots are available all over the web,
> and from interfaces that don't introduce or even mention any contractual
> relationship with OSMF as a condition of download (whether the user is
> an OSM contributor or has used OSMF-owned services directly might be
> relevant here).

A condition of having a valid licence to use OSM data is providing a
suitable way of pointing out the conditions of use of said data to your
users/customers/etc (which is relaxed a bit for produced works). Don't
provide that, you don't have a valid licence with all the related
consequences. If you have information that this obligation is not being
fulfilled by distributors of OSM based products, please report it to the
OSMF/LWG.

In any case the point was, and that was the matter of longish debate
prior to the licence change, that both copyright and similar rights and
the contractual terms would be brought forward in the case that there
was actual dispute and having one does not weaken the other.

> 
> As you point out, in practice this seems unlikely to matter here: the
> Fairhurst Doctrine is a useful and thoughtful policy statement from the
> community about what it intends to do with the property rights it does
> have, and it seems to clearly indicate that OSMF isn't interested in
> asserting claims over trivial use of IDs, whether or not the rights
> underlying such claims exist.

The Fairhurst doctrine is, at this point in time, not a formal policy of
the OSMF nor has it actually been turned in to useful language yet.
There is an effort under way by yours truly to do exactly that, but it
is quite a long way away from being approved by the OSMF board which
would actually put it in place as an underlying principle.

Simon

PS: I really don't think the OSMF will go after anybody for publishing a
list of OSM ids :-)




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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Tom Lee]

> Which nicely illustrates that should the OSM database not
> be found to be worthy of sui generis database protection (a distinct
> possibility), the ODbL would clearly be enforceable based on contract law.

Of course you're right that contracts can be used to create obligations
outside of copyright or database right--but only if the parties enter such
a contract. In the Ryanair case, PR Aviation was collecting information
from Ryanair's site, and the court held that accessing the site amounted to
entering a contractual relationship (as defined by the site TOS).

But of course OSM extracts and snapshots are available all over the web,
and from interfaces that don't introduce or even mention any contractual
relationship with OSMF as a condition of download (whether the user is an
OSM contributor or has used OSMF-owned services directly might be relevant
here). A lawyer commenting on the post you provided explains the dynamic
well:

http://ipkitten.blogspot.com/2015/01/breaking-cjeu-says-that-owner-of-online.html?showComment=1421340621683#c7550848707130069201

Naturally enforceable property rights via the ODbL attach to the data even
when there is no contract. But not to data that is excluded from such
property rights by law, such as IDs.

As you point out, in practice this seems unlikely to matter here: the
Fairhurst Doctrine is a useful and thoughtful policy statement from the
community about what it intends to do with the property rights it does
have, and it seems to clearly indicate that OSMF isn't interested in
asserting claims over trivial use of IDs, whether or not the rights
underlying such claims exist.
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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Naturally, in a perfect world, you are correct.

Unluckily experience shows (both here and on help) that the responders
don't point to the guidelines and the other relevant material (at best
they refer to outdated pre-licence change wiki pages) they offer their
own, not clearly identified as such, opinions.

Now if the people asking the questions were aware of that and took the
answers with multiple grains of salt, you could say: ok, let the
armchair lawyers have their fun. Alas what happens is that it simply
provides perfect material for the FUD-mongers.

For the record, the OSMFs policies are enshrined in the following places:

http://www.openstreetmap.org/copyright
http://wiki.osmfoundation.org/wiki/License
http://wiki.osmfoundation.org/wiki/License/Community_Guidelines

Simon



Am 27.06.2015 um 10:23 schrieb Richard Fairhurst:
> Simon Poole wrote:
>> As the name of this list says it is "legal talk" (aka yapping 
>> without consequence) ... not "get-help-from-the-OSMF". 
> 
> With my list admin hat on, I think that's a little harsh. Often, as you say,
> queries can be "resolved by pointing to the relevant published guidelines"
> and there's no reason why the community can't do this on this list - or on
> help.osm.org, or wherever - rather than burdening LWG with the task of
> fielding so many routine enquiries.
> 
> legal-talk@ is not a bad first port of call. It is indeed only a -talk list
> but we don't necessarily need to bite people who come to talk.
> 
> cheers
> Richard
> 
> 
> 
> 
> 
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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Richard Fairhurst]

Simon Poole wrote:
> As the name of this list says it is "legal talk" (aka yapping 
> without consequence) ... not "get-help-from-the-OSMF". 

With my list admin hat on, I think that's a little harsh. Often, as you say,
queries can be "resolved by pointing to the relevant published guidelines"
and there's no reason why the community can't do this on this list - or on
help.osm.org, or wherever - rather than burdening LWG with the task of
fielding so many routine enquiries.

legal-talk@ is not a bad first port of call. It is indeed only a -talk list
but we don't necessarily need to bite people who come to talk.

cheers
Richard





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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Am 26.06.2015 um 16:55 schrieb Tom Lee:

> ... As I noted elsewhere[2], EU and US law don't seem to
> make database IDs eligible for copyright (or associated license
> requirements), at least when their reproduction is associated with the
> lawful use of the relevant database. So I think you'd be find in this
> scenario.
.

I believe your conclusions are mistaken: the ODbL does not rely on
copyright law outside of and database rights in the EU. It does need to
address the fact that such regulation exists and tries to do that in a
way that the same terms apply globally. Outside of that it is
essentially a contract between the licensor and the licensee.

In that context naturally

http://curia.europa.eu/juris/document/document.jsf?docid=161388&doclang=EN

http://ipkitten.blogspot.ch/2015/01/breaking-cjeu-says-that-owner-of-online.html

is relevant. Which nicely illustrates that should the OSM database not
be found to be worthy of sui generis database protection (a distinct
possibility), the ODbL would clearly be enforceable based on contract law.

Simon



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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Am 26.06.2015 um 16:55 schrieb Tom Lee:
>> As the name of this list says it is "legal talk" (aka yapping
> without consequence) ... not "get-help-from-the-OSMF"
> 
> I'm sorry to see this practice discouraged. The archive description[1]
> says this is "the list for discussion of all legal matters relating to
> Openstreetmap, including licensing and copyright" and the archives are
> full of people asking questions about attribution, virality and
>  transformation. 

I'm not discouraging the practice of discussing things here, I'm
discouraging the practice of coming here and expecting a definite answer
from the licensor of the data and then moaning for years on end because
they didn't get it. Or put differently there is no obligation at all to
answer questions here, some might get an answer some not, YMMV.

> 
> Simon, is there a place where guidance issued from the
> @osmfoundation.org  addresses you list is
> made public? It seems like it could benefit others who find themselves
> with similar questions; it may also be relevant to resolving legal
> questions that are discussed elsewhere.

The community guidelines and now and then the LWG minutes are the public
part of the guidance. We clearly cannot create new policy on a case by
case base and don't do so.

The other part is that typically the devil is in the details, and
companies don't want to and wouldn't expect tentative plans or vague
ideas to be discussed in a public forum.

> 
> On point 3 of Jan Erik's question: I've seen a few projects where
> staleness is not a concern and snapshots of OSM data can be used,
> affording ID stability. So I think it's probably worth talking this
> scenario through. As I noted elsewhere[2], EU and US law don't seem to
> make database IDs eligible for copyright (or associated license
> requirements), at least when their reproduction is associated with the
> lawful use of the relevant database. So I think you'd be find in this
> scenario.

The question is not quite so simple, see discussion of the Fairhurst
doctrine on the OSM wiki.

> 
> But I agree with Simon that your proposed implementation is going to
> come to grief because of ID instability. You might want to take a look
> at OpenLR[3], which is designed to solve problems similar to this one.
> Alas, it's not trivial to use, so I'm not sure if it would offer your
> users many benefits over the geographic information you're already storing.

I've pointed Jan Erik to the opentraffic.io segment matching and to
overpass permanent ids.

Simon



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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Tom Lee]

> As the name of this list says it is "legal talk" (aka yapping without 
> consequence)
... not "get-help-from-the-OSMF"

I'm sorry to see this practice discouraged. The archive description[1] says
this is "the list for discussion of all legal matters relating to
Openstreetmap, including licensing and copyright" and the archives are full
of people asking questions about attribution, virality and  transformation.

Simon, is there a place where guidance issued from the
@osmfoundation.org addresses
you list is made public? It seems like it could benefit others who find
themselves with similar questions; it may also be relevant to resolving
legal questions that are discussed elsewhere.

On point 3 of Jan Erik's question: I've seen a few projects where staleness
is not a concern and snapshots of OSM data can be used, affording ID
stability. So I think it's probably worth talking this scenario through. As
I noted elsewhere[2], EU and US law don't seem to make database IDs
eligible for copyright (or associated license requirements), at least when
their reproduction is associated with the lawful use of the relevant
database. So I think you'd be find in this scenario.

But I agree with Simon that your proposed implementation is going to come
to grief because of ID instability. You might want to take a look at
OpenLR[3], which is designed to solve problems similar to this one. Alas,
it's not trivial to use, so I'm not sure if it would offer your users many
benefits over the geographic information you're already storing.

Tom

1: https://lists.openstreetmap.org/listinfo/legal-talk
2: https://lists.openstreetmap.org/pipermail/talk/2015-June/073250.html
3: http://www.openlr.org/
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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Jan Erik Solem]

Thanks Simon

I looked for the relevant list at
http://wiki.openstreetmap.org/wiki/Mailing_lists and tried this one.
Will write to legal-questi...@osmfoundation.org instead then.

/Jan Erik



On Fri, Jun 26, 2015 at 10:37 AM, Simon Poole  wrote:
>
> Jan Erik
>
> As the name of this list says it is "legal talk" (aka yapping without
> consequence) ... not "get-help-from-the-OSMF". The proper places to
> address are plastered all over openstreetmap.org and osmfoundation.org:
> le...@osmfoundation.org (policy issues and similar) or
> legal-questi...@osmfoundation.org (for specific use questions).
>
> The session at SOTM-US (I wasn't there so I only have 2nd hand accounts)
> seems to have mainly been the usual fairy tales with an agenda and can
> be safely (and should be) ignored. (That is the polite version.)
>
> We currently get at least a handful of enquiries to legal-questions per
> week, sometimes per day, they typically get a response within 24 hours
> (obviously the proper places can easily be found). Most can be resolved
> by pointing to the relevant published guidelines
>
> - http://wiki.osmfoundation.org/wiki/License
>
> and
>
> - http://wiki.osmfoundation.org/wiki/License/Community_Guidelines
>
> there are some that take longer to close, but that is rare. Inquires
> range from cinema and TV productions wanting to use OSM to new business
> wanting to use OSM data in novel ways.
>
> Naturally we cannot be an Ersatz-counsel for businesses trying to get
> their ideas vetted (this has nothing to do with being lawyers or not
> btw), but we can give pointers to what will and what will not work.
>
> To your questions:
>
> 1) yes, see above
>
> 2) if you are generating the stats data on the fly there is no database
> and nothing to share (the polygons are naturally derived from OSM and
> subject to the ODbL but will likely fall under the trivial
> transformation guideline). If you are storing the generated stats in a
> database and publishing them in principle you should probably make the
> statistical dataset available (given that you are already publishing it,
> that shouldn't be an issue) on request.
>
> 3) the problem is that doing it in the proposed way is technical
> nonsense so I'm not sure if it makes  any sense to burn brain power to
> discuss it further (OSM object IDs are not stable references).
>
> Simon
>
> Am 26.06.2015 um 09:34 schrieb Jan Erik Solem:
>> Hi legal-talk people
>>
>> We’re thinking of starting to use OSM data at Mapillary
>> (http://www.mapillary.com/) to improve our service to users. At SotMUS
>> earlier in the month I heard several speakers say in connection to
>> commercial applications, something like “as long as you don’t modify
>> OSM data you are fine”. Which I take they meant that you don’t have to
>> ODbL your database and internal data.
>>
>> 1) Are there any official guidelines for this?
>>
>> 2) Specifically we want to use shapes for city/regional/country
>> borders to compute stats for our contributors. We are currently using
>> a public domain set that is a LOT worse than OSM and would be great to
>> switch. We will not edit OSM data in any way, but store
>> shapes/polygons and use for stats lookups. Can we import OSM shapes
>> without requiring ODbL of our data?
>>
>> 3) We’re working on a photo routing feature. In the future it would be
>> awesome to store the closest OSM road segment ids to our photo
>> sequences in our internal database (either a specific routing db or
>> our main db). Does storing ids as a property of some objects in our db
>> require ODbL release of our data?
>>
>> Sorry for the long email and the many questions. We want to do this
>> right and prefer a conservative approach as we’re fairly new to OSM.
>>
>> yours,
>> /Jan Erik
>>
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Re: [OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Simon Poole]

Jan Erik

As the name of this list says it is "legal talk" (aka yapping without
consequence) ... not "get-help-from-the-OSMF". The proper places to
address are plastered all over openstreetmap.org and osmfoundation.org:
le...@osmfoundation.org (policy issues and similar) or
legal-questi...@osmfoundation.org (for specific use questions).

The session at SOTM-US (I wasn't there so I only have 2nd hand accounts)
seems to have mainly been the usual fairy tales with an agenda and can
be safely (and should be) ignored. (That is the polite version.)

We currently get at least a handful of enquiries to legal-questions per
week, sometimes per day, they typically get a response within 24 hours
(obviously the proper places can easily be found). Most can be resolved
by pointing to the relevant published guidelines

- http://wiki.osmfoundation.org/wiki/License

and

- http://wiki.osmfoundation.org/wiki/License/Community_Guidelines

there are some that take longer to close, but that is rare. Inquires
range from cinema and TV productions wanting to use OSM to new business
wanting to use OSM data in novel ways.

Naturally we cannot be an Ersatz-counsel for businesses trying to get
their ideas vetted (this has nothing to do with being lawyers or not
btw), but we can give pointers to what will and what will not work.

To your questions:

1) yes, see above

2) if you are generating the stats data on the fly there is no database
and nothing to share (the polygons are naturally derived from OSM and
subject to the ODbL but will likely fall under the trivial
transformation guideline). If you are storing the generated stats in a
database and publishing them in principle you should probably make the
statistical dataset available (given that you are already publishing it,
that shouldn't be an issue) on request.

3) the problem is that doing it in the proposed way is technical
nonsense so I'm not sure if it makes  any sense to burn brain power to
discuss it further (OSM object IDs are not stable references).

Simon

Am 26.06.2015 um 09:34 schrieb Jan Erik Solem:
> Hi legal-talk people
> 
> We’re thinking of starting to use OSM data at Mapillary
> (http://www.mapillary.com/) to improve our service to users. At SotMUS
> earlier in the month I heard several speakers say in connection to
> commercial applications, something like “as long as you don’t modify
> OSM data you are fine”. Which I take they meant that you don’t have to
> ODbL your database and internal data.
> 
> 1) Are there any official guidelines for this?
> 
> 2) Specifically we want to use shapes for city/regional/country
> borders to compute stats for our contributors. We are currently using
> a public domain set that is a LOT worse than OSM and would be great to
> switch. We will not edit OSM data in any way, but store
> shapes/polygons and use for stats lookups. Can we import OSM shapes
> without requiring ODbL of our data?
> 
> 3) We’re working on a photo routing feature. In the future it would be
> awesome to store the closest OSM road segment ids to our photo
> sequences in our internal database (either a specific routing db or
> our main db). Does storing ids as a property of some objects in our db
> require ODbL release of our data?
> 
> Sorry for the long email and the many questions. We want to do this
> right and prefer a conservative approach as we’re fairly new to OSM.
> 
> yours,
> /Jan Erik
> 
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> legal-talk mailing list
> legal-talk@openstreetmap.org
> https://lists.openstreetmap.org/listinfo/legal-talk
> 



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[OSM-legal-talk] Using OSM data without modifying - are there any guidelines?

[Jan Erik Solem]

Hi legal-talk people

We’re thinking of starting to use OSM data at Mapillary
(http://www.mapillary.com/) to improve our service to users. At SotMUS
earlier in the month I heard several speakers say in connection to
commercial applications, something like “as long as you don’t modify
OSM data you are fine”. Which I take they meant that you don’t have to
ODbL your database and internal data.

1) Are there any official guidelines for this?

2) Specifically we want to use shapes for city/regional/country
borders to compute stats for our contributors. We are currently using
a public domain set that is a LOT worse than OSM and would be great to
switch. We will not edit OSM data in any way, but store
shapes/polygons and use for stats lookups. Can we import OSM shapes
without requiring ODbL of our data?

3) We’re working on a photo routing feature. In the future it would be
awesome to store the closest OSM road segment ids to our photo
sequences in our internal database (either a specific routing db or
our main db). Does storing ids as a property of some objects in our db
require ODbL release of our data?

Sorry for the long email and the many questions. We want to do this
right and prefer a conservative approach as we’re fairly new to OSM.

yours,
/Jan Erik

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