Re: [OSM-legal-talk] Guideline review: Substantial
On Wed, Apr 30, 2014 at 10:09:08AM -0700, Luis Villa wrote: On Tue, Apr 29, 2014 at 9:39 PM, Paul Norman penor...@mac.com wrote: 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.) Putting BHB into an OSM context, what seems to matter is mapping effort. That makes sense - 100 detailed POIs are worth more than 100 points with only building=yes. Of course mapping effort is harder to measure... Hard to measure, but at least likely the right framework. i would define insubstantial as less than 1 day of work (8 hours) of a medium experienced mapper (or 10 hours or 24 hours) this could be easily acomanied by rules fitting standard case like we consider one day work to be - 50 poi on area smaller than X - 400 adress points on area smaller than X - outines of 200 features where good imaginery is present (only outlines, no other tags) - ... or number divided by 3 if area is larrger than X there would be some technical discussion on all the rules, but the underlying standard should be stable. michal -- michal palenik www.freemap.sk www.oma.sk ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
Luis, Thank you very much for your thoughtful comments, I hope you don't mind that I've referenced the mail link on the page for resource reading! On 30/04/2014 00:10, Luis Villa wrote: 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).) Good point and done on the general Community Guideline page. 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. I've done some rewording to the summary which I hope addresses these. I've not added a link to the map features page, they are not (really) the same concept. A Feature is how an ordinary map viewing individual would see things: a single road (even if broken into different segments for speed limits), a lake, a pub (even if tagged with multitudinous detail on the beer and ATM machines). A general note to all: these guidelines are directed at folks who are not familiar with OSM, so need to worded accordingly using simple, hopeful translatable, wording and sentences. * Hope this is helpful- Indeed! Mike ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
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? ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
Paul Norman wrote: Is there any relevant case law on substantial? A brief reminder that there are two useful wiki pages: https://wiki.openstreetmap.org/wiki/Statute_law http://wiki.osm.org/wiki/Case_law which collect links to useful papers and cases. In particular Charlotte Waelde's paper contains a long discussion of what might be considered substantial in a geo context post-BHB: http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf Richard -- View this message in context: http://gis.19327.n5.nabble.com/OSM-legal-talk-Guideline-review-Substantial-tp5804512p5804651.html Sent from the Legal Talk mailing list archive at Nabble.com. ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
[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=49633doclang=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
Re: [OSM-legal-talk] Guideline review: Substantial
From: Luis Villa [mailto:lvi...@wikimedia.org] Sent: Tuesday, April 29, 2014 3:10 PM To: Licensing and other legal discussions. Subject: Re: [OSM-legal-talk] Guideline review: Substantial 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. So, there's two cases here. One is in Europe. You might have trouble enforcing a contract which restricts you from acts permitted in the directive. I'm not sure of this interpretation, but won't further consider it because the point is moot, since 6.0 explicitly says that the ODbL doesn't restrict the rights you have under the exceptions to the database right. The other more complicated one is outside Europe, where you'd be looking at the ODbL as a copyright license or contract. In that case, we still want the guideline to be in harmony with the database directive for a few reasons 1. The ODbL defines the terms with the same text as the database directive and directly references the EC directive. 2. Different definitions of substantial would result in different allowable actions depending on where you are. To some extent this is going to happen anyways, but if we can avoid additional cases that's good. 3. Europe is probably the only place where the courts have considered the definitions of substantial and insubstantial used in the ODbL. 4. I find it's generally easiest to look at the ODbL as a license database right, rather than a license of copyright or a contract 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. OSM has ~250M features. The difference from 2B is for technical reasons to do with the data model. Seeing the percentages that are being used for substantial, I think anything that is quantatively substantial will be qualitatively substantial. I also suspect that OSM has two key differences from anything else considered. One is the size and worldwide scope - Great Britain is ~2% of the planet-wide data, but anyone trying to work with all of Great Britain is hardly likely to not consider it substantial. Another is applicability to database of geographic information. I'd defer to someone who's more familiar with them, but I believe the Ordinance Survey treats *much* smaller extracts of their data as substantial. 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.) Putting BHB into an OSM context, what seems to matter is mapping effort. That makes sense - 100 detailed POIs are worth more than 100 points with only building=yes. Of course mapping effort is harder to measure... Some pretty decent summaries of BHB and other relevant caselaw, FYI: Thanks for the links - they're on my to-read list. 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's a data model issue. OSM's data model is designed for crowd-sourced editing, and polygons are composed of multiple elements
