Re: [OSM-legal-talk] [OSM-talk] Progressing OSM to a new dataLicence regime
My apologies but the DBL text seems to be mis-formatted -- probably as a result of my last wordpress update. It should be fixed now, but just in case the downloads offer the canonical version. Thanks! ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
Re: [OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL
On 22 Feb 2008, at 14:14, Frederik Ramm wrote: Hi, the current state of discussion/analysis is that a license like ODL would offer sound legal protection only where database law exists (e.g. in Europe), while for other jurisdictions (e.g. the US) we'd have to rely on the contractual aspect which may be hard because the contract doesn't bind third parties to whom the data might be passed. How hard exactly it is seems to be a bit murky at the moment. In this post, I want to focus solely on Europe, i.e. places where database law exists. As far as I understand, database law is a kind of copyright for data collections, and it means that if you extract a significant amount of data from a database you need permission from the creator of said database. Richard pointed out the remainder of what I would have said correctly, which I excerpted below. I would like to clarify that I think that the only legal restriction that would most likely hold in terms of taking data from a database and creating a new database would be the database right and contract -- copyright is likely not to be a factor. And I'd like to re-iterate that the standard is not significant but rather substantial, which tracks the language of the Database Directive. On 22 Feb 2008, at 15:23, Richard Fairhurst wrote: Frederik Ramm wrote: So as long as I extract non-significant amounts, the data would essentially be PD? You could use it as such, yes. ODC-Database expressly says that it considers a Derivative Database to comprise a _Substantial_ part of the Data (my emphasis). That's whether it's applied via contract, database right or copyright. That much is unambiguous. But you couldn't, of course, recombine it with a large number of other insubstantial extracts, because then you have made a Substantial extract. On what's substantial and what isn't, for an evaluation under EU database right, see Charlotte Waelde's oft-cited paper (http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf) on pp28-32. Especially the top of page 32: The Directive provides that a lawful user of a database has the right to extract and/or re-utilise an insubstantial part of the contents. This is subject to the proviso that any acts by the lawful user must not conflict with the normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database. Any contractual provision seeking to override this measure is null and void. Which I think is what I said above, and what ODC-Database reflects. Dr Waelde also notes that under EU database right it's not just a matter of percentage, but also of a qualitative analysis. To me it appears clear that a single street name isn't substantial, the whole of Cambridge is. We could spend hours discussing this but I suspect it comes down to don't take the piss. cheers Richard Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
Re: [OSM-legal-talk] Deconstructing the loss of data claim
On 20 Feb 2008, at 00:56, Frederik Ramm wrote: Jordan said, in a recent response to one of my posts and comparing ODL to a PD-type license: I personally am neutral on a preference between the two and think that it would be wholly inappropriate for me to recommend one or the other to OSM. I think that anyone wanting to use one of the approaches should pick the one that best suits their needs. So while he crafted ODL and thinks it would work, he doesn't actually recommend anything, saying basically that we should know best what's good for us. After midnight (in the UK at least), but I need to respond to this one. I said this because, though I am a lawyer, I am not OSM's lawyer. I joined this list about six months ago or more -- when I started drafting and thinking about these licences. I can't and won't recommend one to this list. I use your maps, but I haven't contributed geodata and even if I was a longterm contributor to this community and felt that I had a right to voice my own opinion on this issue, it is way too hard to separate out that personal opinion from a professional opinion, as I'm again, not OSM's lawyer and so won't be giving OSM advice on what licence to choose. Thanks! ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
[OSM-legal-talk] Follow up comments
My apologies if this has been brought up before -- as I mentioned I'm playing catch up to this week's posts on the list. I'm going to just pull some threads in the conversation and comment on them, rather than copying and pasting from people's posts. And just under the deadline... +++ In terms of what the licence covers and various actions: Copying entire database verbatim, content (data) and all -- copyright, database rights, contract Copying entire database with changes (a derivative database), content (data) and all -- copyright, database rights, contract Taking out all content (data) and making a new database (a derivative database -- database rights and contract +++ Trade secret was mentioned as a fourth pillar of protection by JTW. I agree that this isn't appropriate/suitable for an open project, which I've pointed out on this list before, and in fact pointed out as a reason with the Open Data Commons Public Domain Dedication and Licence doesn't waive unfair competition in the protocol. http://www.opendatacommons.org/2007/12/18/unfair-competition-and-the- science-commons-protocol/ A open project using the Open Database Licence could possibly use one of the other areas of unfair competition depending on the context and the legal jurisdiction: # Publicity rights; # Trade mark claims; # Passing off (which is a lot like trade mark); # Deceptive advertising; # Other kinds of unfair methods of competition +++ I've seen mentioned a few times the ease of administration between the public domain, the DBL, and/or the CC licences. My opinion is that _of course_ the public domain dedication will be easier. My personal opinion is that hte DBL is easier to administer than the current CC licences, but obviously I'm biased. I really want it to be, and Charlotte and I drafted it to be, easy to use and clear in terms of what it does and doesn't address. The text isn't of course set in stone and can be improved. +++ Testing licences in court. A licence, if it does it's job properly, doesn't end up in court because people are clear about its obligations. I've always been against this idea that any FOSS or open content licence needs to be brought up in court to be effective. I'll leave it at that. +++ Regarding commercial use of OSM materials, as was pointed out that is allowed under the current licence, under FOSS like the GPL, and in the Open Data Commons Database Licence. This is not a licensing issue under the DBL as it doesn't have a commercial restriction. +++ Regarding enforcing the Open Database Licence via contract. Yes, the more you treat the data like a software End User License Agreement (EULA) the clearer the contract case -- clickwrap, terms and conditions, signing up to access the API, and the like would all be ways to strengthen the contractual relationship. +++ I think one of the questions is, what does the current CC licence cover now? The licence is I believe CC-BY-SA 2.0, which is the former generic version and based on US law. http://creativecommons.org/licenses/by-sa/2.0/ It does not: -- explicitly state that it operates by contract as well as a copyright licence -- cover EU database rights The ODL does both of these things. +++ In relation to the preceding, the ODL is designed to work worldwide and to provide an easier to use and more tailored legal tool that CC- BY-SA, which was the previous option. I think it does this, but again I'm biased. However the ODL does not: -- create copyright in jurisdictions where none exists -- create database rights where none exist (either because the database doesn't qualify or because database rights don't exist). Is the licence going to work perfectly in every jurisdiction for geodata? I don't know. Are there problems of copyrightability and existence of database rights and relying on contract to enforce the rights? Yes. See Charlotte Waelde's article quoted elsewhere (she is one of the co-authors of the ODL by the way). +++ I think that there has been some mention of the public domain and its applicability in some jursidictions, such as France. I think that the PDDL (the other Open Data Commons licence) covers this with the use of a BSD style licence as a part of it when the PD dedication doesn't work. Thanks! ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
Re: [OSM-legal-talk] License Change Status?
On 1 Jul 2008, at 14:43, Frederik Ramm wrote: The whole transition process - which, correct me if I'm wrong, is not scheduled to be discussed at SOTM at all - is surely as difficult. I have to apologize to everyone -- I thought I would be able to attend SOTM and talk about open data and the new licences (both the ODbL and the Public Domain Dedication and Licence), but I've just started a new job. This new position is with a company that will keep me very busy for the month of July, and I just can't squeeze in prep time and a trip to Limerick. Hopefully once things quiet down a bit I'll be able to contribute a bit more. Thanks! ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
Re: [OSM-legal-talk] Starting Repository For Public Domain, OSM Data
On 15 Oct 2008, at 14:04, John Wilbanks wrote: Jordan Hatcher is the author of the Public Domain Dedication License by the way, not CC. However, the PDDL is the only license that SC currently certifies as compliant with the protocol - CC Zero isn't there yet. Yep! BTW, I have changed jobs recently and so am a lot more busy. I'm looking at ways to strengthen the involvement of OKFN in the Open Data Commons project and aim to get things stable in terms of future development and support in the next few months. Look out for a call for volunteers, probably on the website, sometime soon. Thanks! ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan at opencontentlawyer dot com OC Blog: http://opencontentlawyer.com IP/IT Blog: http://twitchgamer.net Open Data Commons http://opendatacommons.org Usage of Creative Commons by cultural heritage organisations http://www.eduserv.org.uk/foundation/studies/cc2007 ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] Open Database Licence (ODbL)
Hi everyone, I'm the co-author of the ODbL. I know that everyone has been looking through the licence with a view to adopt it for Open Street Map. I'm really pleased that the community involved with such a great project is thinking about adopting it. I'm a volunteer and having been working on this licence in my spare time, which I have precious little of at the moment. So at times, the process takes a bit longer. Thanks for your understanding on this point. I know everyone really wants to see the latest draft and have an opportunity to discuss it. If you can just give me a bit of time, I'll have something for you next week. Thanks! ~Jordan ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On 12 May 2009, at 03:17, Peter Miller wrote: I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. Just to clarify, Peter, I spent some time this past Autumn reviewing the comments from your lawyer, for free, and sent to you privately. This spring, I've been focused on the new drafts of the ODbL / DbCL, and had less time to respond to specific comments, including from users who have been kind enough to share their legal advice with the community. As I also made clear in our email exchange, I'm happy to, within my resources, address issues that relate to the Open Data Commons project and not to you, Peter Miller, specifically. CC, for example, doesn't offer the level of detailed advice on use of their licenses on their site that you seek. My offer to meet with your lawyers (for a fee) was based on my opinion that there were several basic elements of open licensing in general, and the ODbL in particular, that your lawyer did not seem to understand. As such, I offered to meet with you and your counsel to go through them so that you both can have a better understanding of the issues present. Thanks again for your understanding. ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan [at] opencontentlawyer dot com More details at: http://www.jordanhatcher.com Open Data at: http://www.opendatacommons.org ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] ODbL, choice of law, and porting (and why ODC won't have a porting process)
Hi everyone, I'm afraid that there may be some confusion over the choice of law clause within the ODbL (Section 10.4) and what it means for a porting process for the ODbL (and by implication the PDDL). By way of background, Creative Commons has a process where it started out with a license closely based on US law that got used around the world. They then were able to build up contacts in various jurisdictions that port the standard CC licenses to their local jurisdictions. This isn't a simple language translation -- it's a drafting of the CC licenses to fit specific local law. The licenses for The Netherlands don't just translate it into Dutch, they match the principles to Dutch copyright and neighbouring rights law, for example. The Scottish CC project uses the CDPA in the UK as its baseline, and so on and so on. After some time, CC drafted an unported license as a template based on general copyright treaties so as to move away from the US license being the generic CC license. Though this is becoming a popular version of the CC licenses to use (for various reasons), even Lessig has referred to the unported licenses as raw (as in raw meat) and pushed for use of jurisdiction specific licenses. Even though most of the porting for each jurisdiction is done by volunteers (I participated in the CC-Scotland porting, for example), this process isn't free (as in beer) for both the jurisdiction and for CC. Each version went through a process coordinated by paid Creative Commons staff to ensure compliance and quality on the legal side -- involving the CCi team in Germany and no doubt CC's general counsel. This is not to mention the costs for the flights for Lessig (now Joi Ito) to fly over for the launch events, the costs of having the launch events themselves, and any follow on infrastructure to maintain the licenses. Looking back over this process, it's not clear (at least to me) what the legacy is of this process. Many people use the unported licenses (calling into question the utility of having jurisdiction specific licenses), and as the CC licenses have gone through successive versions, several (if not most) of the jurisdictions are behind the main version. I can't do a detailed review of every jurisdiction (because of language differences and time), but a review of the English language licenses and my understanding from CC is that a choice of law clause is in very few of the ported licenses. In fact, Scotland may be singular in having a choice of law clause. An occupational hazard of being a lawyer is to always try to hedge, even a little bit, even when the chance are really remote. So I can't say that unequivocally Open Data Commons will never go through a porting process similar to the one by CC. But given the cost in both time and money that undertaking such a project would mean, as well as an unclear set of benefits for doing so, I see the chances of Open Data Commons doing a similar process as very very remote. This is not to say that we won't explore and encourage _translations_ of the text, which we've done at OKF with the Open Definition. Thanks ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan [at] opencontentlawyer dot com More details at: http://www.jordanhatcher.com Open Data at: http://www.opendatacommons.org ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
