Re: [OSM-legal-talk] [talk-au] Statement from nearmap.com regarding submission of derived works from PhotoMaps to OpenStreetMap
2011/6/18 John Smith deltafoxtrot...@gmail.com: Well one assumption I'm making is that everyone is adhering to the license restrictions placed on them, perhaps this would be easiler with a solid example. OSM-F continues to distribute map tiles under a CC-by-SA license and for the purpose of this example doesn't have a terms and condition using their website. Someone from the US comes along and derives some data from the tiles OSM-F produces. That same someone then distributes the resulting data under a CC-by-SA license. At any point is anyone in breach of copyright? Where do they do all these acts? Jurisdiction may matter. In the UK reconstructing a substantial part of the database from the tiles would almost certainly be an extraction and so potentially infringing the database right unless licensed etc. I think quite likely an infringement of copyright in the database in the UK as well. Quite possibly not an infringement of copyright elsewhere. I simply don't know about that. Generally doing something indirectly via other works cannot be used to launder an infringement in the UK. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Statement from nearmap.com regarding submission of derived works from PhotoMaps to OpenStreetMap
2011/6/17 Ben Last ben.l...@nearmap.com: The goal of that statement was to allow any contributions that have been derived from our PhotoMaps under our current licence (which is what imposes the CC-BY-SA redistribution condition) can remain in the OSM db. Not being a lawyer, I'm not going to comment on how the statement may or may not achieve that; I'm not qualified to interpret it. All I can do is make it clear that it was drafted to explicitly allow derived data to stay in the database. I've seen the background correspondence about it, and I know the lawyers involved were well aware of the CTs, the OdBL, the future licence terms, etc, when they drafted it. Thanks for that. Speaking as a lawyer for a moment - and trying to be helpful, though I detect some irritation at what I am saying - as a matter of strict reading, the first statement of Ben's in this thread quite clearly states that OSMF may continue to use nearmap data but may not licence it under ODbL. In particular the clarification paragraph contains the sentence: The OSMF are making a change to the contributor terms which makes them incompatible with the requirement, under our community licence, that derived works be distributed only under CC-BY-SA. We are not able to change our licence to allow distribution of derived works under unspecified future licences. Which is about as categorical as it can be. Some responses to my email explaining this haven't been happy with that conclusion and have complained about it, but the fact that information is unwelcome and unwanted doesn't make it untrue. Now, people don't always write what they mean. And some of the rest of what Ben says appears (confusingly) to contradict that plain statement at the end and the way in which the lawyer drafted paragraphs operate. As a matter of law (and here Australian law is similar enough to English law that I am confident it is right for there as here), provided Ben appears to have the authority to speak on nearmap's behalf, what he says in this email is quite enough to rely on. A court would read the entirety of the correspondence and conclude that, however confused his first statement, what he says later on makes it clear precisely what he is trying to do. If any other project wants to do this in the future having them say: we are happy for you to keep any data that has already been contributed to the map and for you to relicense it under any licence selected in accordance with your existing contributor terms would be entirely sufficient. So, thank you Ben for the additional clarification and thank you everyone else for bearing with my trying to nail this down. I know it appears annoying and pedantic to some, but if you care about legal issues at all that is how it has to be some times. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [talk-au] Statement from nearmap.com regarding submission of derived works from PhotoMaps to OpenStreetMap
2011/6/17 andrzej zaborowski balr...@gmail.com: 2. What happens if a person in country A with database rights publishes a tileset and licenses it under CC-By-SA to a person in country B without database rights? The second person is then as far as I can see not bound by database rights or a contract. Is that incorrect? Strictly: what matters is where B carries out acts that might be those exclusive to the database right owner. It doesn't matter where B lives or where B receives a licence, but where B extracts or re-utilizes the tileset. If B does those in a country without the sui generis database right, then B obviously does not have to worry about infringement. The tileset is still subject to A's database rights in those countries that recognise it and thus would need A's permission (which CC-BY-SA does not, I think, give). CC-BY-SA is not intended to be a contract, so there's no contractual relationship between A and B, though its easy enough for one to be implied in some jurisdictions. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] data derived from UK Ordnace Survey
2011/6/16 David Groom revi...@pacific-rim.net: As a slightly supplementary question of what to do with data from those users who have not agreed to the CT's can I make the following suggestion. Given that we obviously want to move forward with a clean database untainted by any data which might be incompatible with future licences, AND Given that the LWG have been unable to establish that OS Opendata is compatible with the CT's , at least that is what I assume is meant by In the UK, we have the ambivalent nature of the license governing OS StreetView usage [1] Can I just make a plea for people not to talk about data (of any kind) being compatible with the CT's. The CT's are a contract between a contributor and OSMF. It may be a breach of contract for one contributor to contribute data under the CT's when it would not be a breach of contract for another to do so. Talking about compatibility in this way is at best unhelpful and at worst simply meaningless. At present it is a breach of the CT's to contribute most datasets that have not been personally collected by the individual contributor since the grant in 2 is wider than most open licenses permit. The right question - when considering deletions - is, can the OSMF use this dataset as part of the OSM. That is a question of compatibility between the original licence (in this case the OS Opendata licence) and the way in which OSMF uses it. In this respect the OS Opendata licence seems fairly good. There are some minor points of pedantry (I don't know if OSMF complies properly with the PECD for instance) and the OS Opendata licence fails to expressly allow sublicensing, but that appears implied from the rest of the terms. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-talk] [OSM-legal-talk] Statement from nearmap.com regarding submission of derived works from PhotoMaps to OpenStreetMap
2011/6/15 Ben Last ben.l...@nearmap.com * All such additions or edits submitted to OSM prior to 17 June 2011 may be held and continue to be used by OSM under the terms in place between OSM and the individual which submitted the addition or edit at the relevant time. * I absolutely do not want to be a fly in the ointment here, but what this paragraph literally means is that OSM can do with those edits just those things which it was permitted to do by the individual contributor (and therefore under the terms to which that contributor agreed) prior to 17 June 2011. If that individual's agreement was restricted to a CC-BY-SA licence then OSM is unlikely to be able to then use the nearmap contributions under ODbL. Maybe that is what is understood in this thread, or maybe the context somehow says that this paragraph doesn't mean what it appears to mean, but I thought it was worth saying. That it was drafted, carefully, by a lawyer I do not doubt. But lawyers draft things on instruction to achieve particular goals. My understanding from Ben's comment is that one of the goals of nearmap is that derived works are distributed only under CC-BY-SA. The second paragraph does that job well as far as I can see and prevents OSM from relicensing nearmap data under ODbL. All this is, of course, on the assumption that any intellectual property rights require licensing. -- Francis Davey ___ talk mailing list talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/talk
Re: [OSM-legal-talk] CTs are not full copyright assignment
2011/6/7 Matt Amos zerebub...@gmail.com: very probably that wasn't the official creative commons line, and he wasn't a lawyer, but neither have i seen his comments officially refuted by anyone at CC. .. or even disavowed :-) Even in the European Union, where there is considerably more harmony, this is not at all a settled question. The CJEU will be looking at at least one question referred from the UK on exactly what has happened to database copyright. The best, and most accurate thing, one can likely say is: some contributors may have intellectual property rights over some aspects of their contribution in some countries and some of those rights might be copyright and therefore fall under CC-BY-SA. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CTs are not full copyright assignment
2011/6/7 Anthony o...@inbox.org: And what's the best, most accurate thing one can say under the ODbL/DbCL? Some contributors may have intellectual property rights over some aspects of their contribution in some places and some of those rights might be copyright and/or database rights. The ODbL might apply to some of that. The DbCL might apply to some of it. Additionally, some places might recognize clickwrap license agreements, which might mean that the ODbL might cover some aspects of some contributions of some contributors. That's a fair summary. It probably doesn't even need the qualification relative to clickwrap licence agreements. Starting the last sentence at The ODbL... The difference is - and I am not taking a position for or against - that more is caught by the ODbL worldwide than is caught by CC and, in particular, in the European Union and other places with the sui generis database right. That means that, where I am sitting ODbL may make a much bigger difference than it might do elsewhere. I say may because its just possible that UK database copyright with a low standard of originality survived the directive, which would make quite a difference. The CJEU has been asked. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CTs are not full copyright assignment
2011/6/7 Anthony o...@inbox.org: It's not even clear that more is caught by the ODbL worldwide, in part because the ODbL explicitly states that it does not cover the copyright over the Contents independent of this Database, and it is unclear what the Contents independent of this Database means (and this too might vary from jurisdiction to jurisdiction, even though in theory it shouldn't). [see below] Also, ODbL is explicitly a contract, and not a license, which might mean that in some jurisdictions (I'm thinking the United States) violations will be governed by contract law and not copyright law. This would mean no injunctions and no punitive damages. Right, so remedies may vary. Injunctions are available for breach of contract (well orders for specific performance anyway) in England, but not punitive damages. Some civil law jurisdictions won't allow punitive damages even for breach of copyright. How *effective* ODbL (or CC for that matter) might be is a separate and equally vexed question to the question of what is caught. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CTs are not full copyright assignment
2011/6/7 Anthony o...@inbox.org: I could certainly see an argument that someone who changes the structure of the database, rearranges the contents, changes the field names, and reorganizes the indexes, has successfully extracted the Contents independent of the Database, and gets to use the whole thing under the DbCL. As a matter of EU law that act would require permission of the owner of the database right (since it would amount to a re-utilisation of the database) which would be covered by 2.2(b). Database copyright (to the extent it exists) I haven't thought about at all for anywhere other than the UK, where its sufficiently complicated to use up my time so far. You may well be right elsewhere in the world. Something for me to think about. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] 'Contents'
invite the question of where the dividing line is. It might have been better not to muddy the waters in this way and just say that the whole thing - whether considered by law as database, as database contents, or anything else - is licensed under the ODbL. Not possible. The ODbL expressly applies only to a database and not the contents of a database (hopefully clear from what I have written). The sorts of applications intended for the ODbL mean that it is supposed to work that way I suspect. Otherwise (and I realize this is a far-fetched scenario, but no more outlandish than some of the others thrown about here) we run the risk of someone taking the whole OSM map data but then arguing in court that what they took is 'database contents' and therefore they are entitled to use it under the DbCL. No. That's clearly not so. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] 'Contents'
On 5 May 2011 15:40, Ed Avis e...@waniasset.com wrote: From a user's point of view, a safe strategy is to assume that 'contents' is empty and that everything in the map is licensed under ODbL. But it's possible that the 'contents', which are covered by the DbCL rather than the ODbL, might be something meaningful. Yes, indeed. And who knows? Even our Court of Appeal (of England and Wales) is not entirely sure, which is why it referred questions to the ECJ about what (if any) intellectual property rights there were in football fixtures lists. An (English) court might well find that parts of or all of the map were some or many artistic works and hence subject to copyright or it might think that some of the words in the map were literary works (unlikely, but I don't know what's there - its a big map), or that (perhaps) each way was a compilation along the lines of the old compilation cases or some similar form of literary work and therefore subject to copyright. Or the ways themselves might be databases subject to database copyright or they might be another kind of work (assuming that Infopaq has destroyed the division of copyright into kinds of work that English law adopts) etc. Really, who knows. I'd certainly happily take instructions to argue either way on all these points, as I'm sure lots of other IP lawyers would. But whatever might be that position, it looks likely that there is also a database (subject to database right) of the bits that make up the map, whether or not there are any other IP rights. Other jurisdictions may (of course) vary, though Europe less so. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] 'Contents'
On 27 April 2011 09:26, Ed Avis e...@waniasset.com wrote: The plan to change the licence is to use ODbL for the 'database' and DbCL for the 'database contents'. Are these 'contents' the same as the 'Your Contents' referred to by the CTs - or is that a different kind of contents? They are defined in the CTs as data and/or any other content (contributed by the contributor). As an aside, what any other content might be is not clear since, surely, anything capable of being uploaded to the site is in some definitions of the word data. However that's a standard lawyerly drafting style to try to exclude any possibilities that haven't been thought of (its a style that is discouraged by clear English campaigners but its pretty common). Put more simply Your Contents is anything you upload. contents in the ODbL has a very different sense. The database right refers to a database in the sense of directive 96/9/EC where database is defined as a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means. So from the point of view of EU database law a database consists of something else (works, data etc) which are arranged into the database. The ODbL shadows this definition by saying: “Contents” – The contents of this Database, which includes the information, independent works, or other material collected into the Database. A court is likely to assume this is intended to parallel the definition given in 96/9/EC, so that contents refer to the things arranged to form the database. Those things may be subject to other forms of intellectual property right, including database rights of their own which might even be licensed under the ODbL (for example a database of works, some of which are tables). Hopefully this makes it clear that something isn't either contents or database but could be both or neither. So, contributors may upload data which does not, itself, constitute a copyrightable work and which is not itself a database and therefore the contributors have no intellectual property rights in the data. Alternatively, contributors may upload data which, taken together, does constitute either a copyrightable work and/or a database. Don't the CTs also need to assign rights over 'Your Database' as well as 'Your Contents', since it is likely that even one single contributor would produce effectively a database of map data, just covering a smaller area of the globe? No. The licence grant in clause 2 licences both copyright and database rights to OSMF. A contributor therefore permits any act which might infringe any database right they might have in the data they upload. The wording of the grant makes it clear that the use of the word contents is not meant to equate to that in the ODbL. Or is an individual changeset considered to be pure 'contents' and only when it is combined with other changesets becomes part of a 'database'? As I hope I've clarified, I don't think it makes sense to ask whether something is considered to be pure 'contents'. The two questions are: (i) what is covered by the contributor terms (everything uploaded) and (ii) what does the ODbL licence (the arrangement of OSMF's database)? -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 19 April 2011 01:27, Anthony o...@inbox.org wrote: Where? The only reference I see to sublicense is You may not sublicense the Work. See my earlier remarks. 4(b) permits the distribution (amongst other things) of a Derivative Work under a licence (which might not be a CC licence) other than the one under which the Work was licensed. i.e. Y licenses rather than X (using our original terminology) which makes it a sublicence - though it is not called that. Y can't license a work to which Y doesn't own the copyright, unless Y has permission to sublicense the work. And CC-BY-SA specifically disallows sublicensing. We can agree to disagree on this perhaps. I'm confident that I could persuade a judge that a licence given by Y is binding on Y. As a general rule though I may not give what I do not have, I may licence the use of that which I do not have the power to licence and that licence, though not valid against the real owner is valid against me. Its a feature of relativity of title and/or estoppel. I don't know what your jurisdiction is, so it may be you don't have those concepts there. But its probably not worth the time arguing over it. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 19 April 2011 13:46, Anthony o...@inbox.org wrote: My jurisdiction is Florida. OK. Mine is England and Wales. Licenses operate on different principles here as they do with you, so we can leave it there. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 18 April 2011 02:13, Anthony o...@inbox.org wrote: Presumably they would point out that the incorrect part of your reasoning is that Re-distribution under a licence is sublicensing and cannot be anything else. Redistribution under a license is not sublicensing. I'm not even quite sure how you'd construe them to be the same. If I give you permission to (re)distribute my work under a license, I am not giving you permission to sublicense that work. Obviously we mean different things by sub-license. Can you explain what you understand it to mean? If X licenses a work to Y under licence L1 and Y licences the same work to Z under licence L2 where Y's right to give L2 is given under L1 then L2 is a sublicence of L1. That is the situation you are describing. And that is (as I understand it) what sublicence means. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
That is the situation you are describing. I'm not sure what you mean by the situation you are describing, but Ah, this is where we are probably at cross purposes. I am sorry for that - its been a long thread. 80n's original query concerned uploading work to OSMF by someone who has agreed to the contributor terms. That is a sublicence (because it is expressed that way) and that is something which CC-BY-SA does not permit (I think we agree on that point). it's not how CC-BY-SA works, since CC-BY-SA specifically says that it does not grant permission to sublicense. Instead Each time You Distribute or Publicly Perform an Adaptation, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License. ... and my mistake, yes of course the right to sublicense applies only to derivative works. Under the US 3.0 at least, the CC licence grants a right to sublicence derivative works but not the original work. Under CC-BY-SA, X licenses the work to Y, Z, and any other third party, granting permission to distribute the work under [the terms of] L1, L2, or any other Compatible License. The licenses to the contributions of X come from X, not from Y. Yes. If Y made modifications to the work, Y's license covers only Y's modifications. If Z then makes modifications, Z's license covers only No. Y's licence covers the whole of the derived work. X's licence covers all the work as not modified by Y. Z benefits from both those licences as against the respective licensors, which makes sense. Z's modifications. I assume the reason this is done is to simplify the chain of title, and also to avoid complications with copyright transfers, inheritance, infringements, etc. On the why though maybe a CC list would be the best place to ask. Yes, that was my understanding. The CC model is a new licence to all users of the work from the original licensor which avoids problems with chain of title. To the extent that CC licences are not contracts this is fine. Certainly in the UK CC doesn't rely on contract to work. I suspect there are more difficulties with ODbL style contract-reliant effects to third parties of this kind. Anyway, as you say this is fairly off topic and not what 80n asked. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 18 April 2011 15:09, 80n 80n...@gmail.com wrote: Francis Thank you for your patience and the detail of your answers. This whole thing is a complicated business and the subtleties when various different licenses and so forth are combine are often unexpected. That's fine. I'm always happy to help. You caught me at a weekend when there was plenty of time to think about it. I won't try and answer your questions about distribution because I don't think add anything to what we already know _and_ because there's some academic argument as to exactly what the distribution right means. I don't think this is the place to rehearse those. No body can be blamed for finding this difficult. Anyone trying to do something radically new - and OSM is fairly radical - will often find themselves caught by laws that weren't designed with them in mind. Copyright law is not really designed to deal with crowd-sourced map projects :-). -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Rights granted to OSMF (Section 2 of the CT)
On 17 April 2011 11:12, Simon Poole si...@poole.ch wrote: You do realize that you already have an agreement with the OSMF? Undoubtably a very fuzzy one, where a lot of the terms might be implicit. You are simply replacing that fuzzy contract with a, not perfect, but at least with most terms spelt out, new agreement. Absolutely. Lets be quiet clear about this. Anyone who contributes to OSMF is (on any analysis) permitting OSMF to use their contribution. In some jurisdictions for OSMF to use the contribution would (at least sometimes) be an infringement of one or more intellectual property rights belonging to the contributor. That means that there would be, without any contributor terms, an implied licence grant to OSMF. But what exactly is OSMF allowed to do with the contribution and for how long? As Simon says, without spelling it out both OSMF and the contributor will be in doubt about it. That's messy and unnecessary. So spelling out the licence is good practice. Spelling out the licence also allows anyone doing any kind of due diligence to check whether its OK for them to use OSMF's data (after all, if OSMF can't tell what their rights are, a downstream user will be in more doubt). Now, concerning clause 2 specifically - per the title of the thread - what is there to object to? In practice a world-wide licence is essential for the web. If the licence were revocable or time limited OSMF would have to provide for an Orwellian removal of data in any downstream product (as well as from the map itself, which of course is much easier) and so on. The licence terms are pretty normal for this kind of activity and not, as far as I can see, unduly onerous. If you want OSMF to make use of your data you need some kind of grant like this. It is also nonsense to suggest that it is anything like commercial licence agreements. It would be very unusual for commercial publishers to accept a licence of that kind (not unheard of, but unusual, particularly in the music industry). Now the contributor terms say more than simply clause 2. They don't just ask for a licence, they ask for what looks like warranty (although this is contradicted by clause 6) and for a limitation of liability on OSMF's behalf. I can see arguments for an against such a thing. Similarly OSMF offers various things in return: attribution and some limitation on the kind of licence it will use for the data. You, or anyone else, might think that these extra terms make the overall deal a bad one. You might want (for example) OSMF to be more restricted in what it can do with a contribution. But that is a different argument from arguing with clause 2. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 17 April 2011 12:09, andrzej zaborowski balr...@gmail.com wrote: I asked a similar question in http://lists.openstreetmap.org/pipermail/legal-talk/2010-August/004270.html and the answer (which I can't find now) from Frederik and others is that most likely your contribution in this case equals to only the *modification* of the original data. So you're granting OSM a license on your modification of the original data, and not the exact contents of the XML document being uploaded. If I have understood the question correctly - and I am not clear on the technical details (*) - then I think this must be right. The CT's aren't particularly clear on this point, but I am fairly confident a court would understand: Thank you for your interest in contributing data and/or any other content (collectively, “Contents”) to the geo-database of the OpenStreetMap project (the “Project”). to mean by contributing data, that data which will change OSMF's database. Since anything which is uploaded that is already their cannot be properly understood as a contribution. The context in which OSMF operates suggests this is the intention of the terms as well. (*) Not that I can't understand them - I may be a lawyer but I have some technical competence - just that I don't know how they work specifically. I've fiddled with OSMF a bit, but don't know all the ways in which one could download and edit information and what implications that could have for the database. I am assuming that there is a usual way of working which involves a download of parts of the OSMF database, editing that downloaded data structure and then uploading so that the changes made change the OSMF database. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 17 April 2011 13:30, 80n 80n...@gmail.com wrote: The question is whether you can upload a CC-BY-SA licensed work under any other license than CC-BY-SA? I am sorry if I misunderstood your original question. I am not quite sure I understand this one. What do you mean by upload .. .under a licence? That doesn't make sense to me. Do you mean, does CC-BY-SA permit a contributor to contribute to OSMF under the existing contributor terms? (Answer: no) or do you mean something else? If I grant you a license to use a creative work under CC-BY-SA, can you then give it to some third party under a different license? I don't see that CC-BY-SA permits this. Yes, for some values of a different licence. Eg, CC-BY-SA 3.0 (us version): http://creativecommons.org/licenses/by-sa/3.0/us/legalcode Clause 4(b) permits the distribution of the work under certain other licences, including Creative Commons Compatible Licence(s). Its a bafflingly drafted licence (if I may say) since it also says You may not sublicense the Work (in clause 4(a)) which directly contradicts what is said in 4(b). Clearly what is intended is that there is a general rule against sublicensing, subject to a specific set of permissions under clause 4(b) even though this comes under a heading Restrictions. Re-distribution under a licence is sublicensing and cannot be anything else. As I have said (possibly on another list - I lose track) CC-BY-SA does prevent a broad and general sublicence of the kind found in many projects such as clause 2 in the contributor terms. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 17 April 2011 14:23, Rob Myers r...@robmyers.org wrote: Have you bought this up on cc-community? If not please could you. :-) That hadn't occurred to me. I'm afraid I tend to be reactive - time's a bit limited for anything else. Also I assume they have expensive (or at least skilled) lawyers who wouldn't be particularly pleased about having their licences criticised by an outsider. Also, I picked the US version since that's a fairly wide example of 3.0, and US legal drafting is (a) something I'm not qualified to do; and (b) (imho) horrid. But if you think it would be worth doing, then I'm happy to say so somewhere. Where's a good place to say it? -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?
On 17 April 2011 16:56, 80n 80n...@gmail.com wrote: Sorry, I was using jargon here which probably only makes sense to those very familiar with the OSM context. I'll try to make myself a little clearer. Suppose there is a creative work that has been published with a CC-BY-SA license. Suppose I take that work and make from it a derivative work. Can I then give a copy of that derivative work to a third party who insists that it is provided to them under an agreement that is like the OSM Contributor Terms 1.2.4? I think I've already answered this, but to be clear: (1) obviously you can do it (2) the act of contributing it is not an infringement of the CC-BY-SA licence, because that permits you to do all that is necessary (reproduce, incorporate etc) (3) CC-BY-SA does not give you the authority to sublicence under an arbitrary licence, so you would have no authority to give the licence in CT 1.2.4 or something like it and that grant of licence would be void as against the original copyright owner (though binding on you) (4) If you do sublicense along the lines of CT 1.2.4 then you may be authorising acts on behalf of the recipient which would be infringements of the copyright of the original copyright owner and that authorisation would be a primary infringement of copyright, actionable by the original copyright owner. (5) The no warranty clause of the CT probably means you are not liable in contract for your inability to licence. Does that help? In other words, if I've agreed to the current contributor terms, does the act of submitting CC-BY-SA licensed content to OSM voilate the terms of the CC-BY-SA license? In general, yes. But not if (for example) the content that was CC-BY-SA licensed belonged to the person you were submitting it to (because then you would not be authorising any infringement of copyright). As a bit of background, the process of modifying the OSM map is a three step process: 1) A user gets a subset of the map from the OSM web-site 2) The user makes modifications to that map on their own computer 3) The user gives the modifications back to OSMF via the OSM web-site. OK. That is what I thought and I have no doubts that *that* is fine. I.e. there is no contractual problem, for reasons I have already explained in this message and the last one. All content within the OSM database is published as CC-BY-SA 2.0. This extends comprehensively however it is obtained. There is no special route that content takes when someone wants to edit something. They request a subset of the map (step 1) which is downloaded to the user's computer where they then modify it (step 2). This subset is licensed under CC-BY-SA just like any other content from OSM and their modifications are a Derivative Work. When user has finished modifying the map they then send it back to OSM (step 3) and in doing so they affirm that the modified content is granted to OSMF under a worldwide, royalty-free, non-exclusive, perpetual, irrevocable licence, or whatever the version of the contributor terms are that they originally signed up to. As I said, a court would almost certainly construe the CT's so that the licence grant was limited to the changes made by the contributor. It seems to me that the CTs get in the way of the loop that is supposed to exist that permits someone to get OSM content, modify it, and then give it back. If the content in this loop is CC-BY-SA licensed then putting up a CT gateway or barrier would appear to break that loop. No. Although there are difficulties with the CT's if you want to incorporate data from other projects, the CT's do not create this prohblem. I understand your reasoning, but a court would not construe the CT's in that way. I mean a *really* different license, one such as CT 1.2.4 which is known to be incompatible with CC-BY-SA 2.0. Right. Hopefully I've made the situation clear. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] OpenStreetMap License Change Phase 3 begins Sunday
On 15 April 2011 19:35, Frederik Ramm frede...@remote.org wrote: In addition, it is imho not clear that not some of the many imports listed as Attribution licensed wouldn't fall into this category, too (rather than in category 3 as CC-BY). I haven't seen this list so cannot comment. [snip] The Ordnance Survey Open Data License, for example, explicitly permits sublicensing so that one would be ok. Also, NearMap imagery could easily be I am afraid it wouldn't be OK because it requires that all sub-licenses (including onward sub-licenses) have a specified attribution statement. That is a restriction on use which means that a contributor (as licensee) does not have sufficient right to grant all the rights granted in clause 2. There's a practical outworking of this: the attribution and licence structure of OSMF does not appear to require me a user of OSM to add the specified attribution statement myself, which is a requirement of the Ordnance Survey Open Data Licence. made compatible if NearMap were to say yeah fine, everyone has the right to allow OSMF to sublicence under CC-BY-SA or ODbL. Better would be the right to grant all rights to OSMF. A lot more is being granted than just a right to sublicense under CC-BY-SA etc. The change in the CT means that in the early versions, you had to vouch for the data you contribute being compatible with any future license change. This isn't the case any more, you only have to say that it is compatible with the current license and that you have the right to authorize OSMF to distribute the data under that license. This last sentence, when read strictly, rules out the import of plain CC-BY-SA or ODbL data sets without the sublicensing option. If I understand you correctly, that's right. Clause 2 appears to prevent most licensed data from being imported. Recently on this list (I think) we were pointed at the LWG's minutes where it was decided to take this approach to avoid various risks to OSMF. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Questions about CTs 1.2.4
On 14 April 2011 08:54, Robert Whittaker (OSM) robert.whittaker+...@gmail.com wrote: If I'm reading what Francis has written correctly, this would seem to be a very real problem with CT 2.2.4, which would prevent us using almost any source which wasn't PD or for which the contributor didn't own the copyright. In particular, Francis is saying that we can't make use of CC-By or ODbL sources because of clause 2. Strictly speaking, you can make use of them, but contributors are (i) in breach of contract in contributing that material and (ii) may (in some circumstances) infringe copyright by authorising OSMF to do acts which are infringements of the licence (eg CC...) under which the material was available. Neither of these may seem like a significant risk. (i) would only be a problem if OSMF itself, or a successor in title, decided to sue. (ii) would normally not apply. Arguably the statement of intention earlier in the CT's (to the effect that OSMF do not intend to infringe the intellectual property of any other person) is enough that a contributor could argue they are only authorising lawful use, whatever clause 2 might say. I wouldn't bet on that. The other reason (ii) may not arise is because there is in fact no way to infringe, depending on the original licence (of which there are an increasing number as governments roll their own) and what OSMF then goes on to do. NB: this isn't a formal contractual analysis, but it is generally applicable since most countries would interpret the CT's as required under English law. The IP analysis is more complex since different IP systems will be applied to decide liability. The above analysis is an attempt to look at it from the English/UK position. Things will vary abroad. From the caveats in clauses 3 and 4, I guess that the intention is that you should be able to use eg CC-by sources (although it's questionable whether or not downstream attribution is guaranteed under ODbL, and the possibility of a future license change is also problematic). Nevertheless, I don't even think that an agreement by There's also an untidy relationship between CC-by's requirement for attribution and the fact that OSMF is only obliged to attribute if asked to do so rather than in any event. OSMF to only use the Contents in a manner which is compatible with a given source license gives you the ability to make the broad rights grant in clause 2, unless the license specifically allows such a grant. (A CC-By license does not say that you can give a third-party the right to do anything restricted by copyright as long as they only use those rights in certain ways.) Right. That is, I am afraid, my point. I though a previous version of the CTs (possibly 2.2.3) had an additional phrase in clause 2, along the lines of to the extent which you are able which I thought was designed to address this point. My interpretation of it was that it allowed you not to have to make the grant for parts of the submitted contents which were under a license that didn't allow it. The CTs then relied on clause 1 to ensure (as much as possible) that the Contents at least allowed OSMF to distribute them under the currently chosen license. Right. I think it was I who suggested it. There are arguments both way: if you add such a phrase, contributors do not have to worry about whether they have the right to grant, all they are doing is granting what rights they have. That's very tidy. On the other hand it means that OSMF cannot rely on having all the rights it needs to publish the map or licence it to others. To do that OSMF needs more rights. Hence not having the phrase gives more certainty to OSMF. So neither approach is right. There's a fundamental difficulty here, namely that incoming data may be subject to a variety of rights licensed under a variety of licences. Somehow folding all that data with its disparate rights into a single product licensed under a single licence is not an easy task. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Questions about CTs 1.2.4
On 14 April 2011 09:57, Robert Whittaker (OSM) robert.whittaker+...@gmail.com wrote: Has this option been considered by OSMF and/or LWG? It, or something like it, has been mooted from time to time. There's no reason why it could not be made to work legally. Two issues might arise: (1) Technical - you would need to change the interface to allow this information to be added and the underlying data model to allow it to be recorded. That sounds like it should be easy enough to me, but years of experience in software development tell me that there may be hidden problems and it may take more developer time than is available (I suspect its in shorter supply than willing legal help - good developers are a scarce resource). (2) Work - maintaining a list of compatible licences *might* end up being a lot of work. I don't know what this is like worldwide. Most work will be front-loaded, since you need to get started with your list. There are I believe policy arguments as well as to whether third party data sets should be allowed or not. Of them I cannot speak of course. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Questions about CTs 1.2.4
On 13 April 2011 22:24, James Livingston li...@sunsetutopia.com wrote: Hi all, After looking at the new CTs, I'm still a bit confused about whether I can agree or not and what a few things actually mean. I was wondering if someone could enlighten me. Answers are my best (informal) guess - so don't rely on it as formal legal advice. From clause 1 If you contribute Contents, You are indicating that, as far as You know, You have the right to authorize OSMF to use and distribute those Contents under our current licence terms To me, that says I can upload any data as long as it's compatible with whatever license we are using at the time. That is, I can agree to the CTs and then still upload ODbL incompatible data because our current licence is CC-BY-SA. * Is that a correct reading? Yes. * If so, how do we know what data must be removed in a switch to ODbL? That clause doesn't appear to put any obligation on you to remove data. All it requires of you is that _when you contribute_ you have a right to give that authorisation. Clause 2 is a grant for certain rights. From previous discussion here, can I assume that I can agree if I'm not the copyright holder, and that I only grant the rights I can under the licence I received the data under? That depends very much on the licence, but for many licences the answer will be no. For example most CC licences don't give you the right to grant such a licence. If that is correct, then OSMF may not be able to re-license under clause 3. For example I got data that could be re-licensed under CC-BY-SA and ODbL so I could upload it, it's not necessarily going to be able to be re-licensed under any arbitrary future licence. How do we indicate that? It is not correct. So the problem doesn't arise. The problem you raise illustrates why, in practice, you cannot give the grant in clause 2 if all you have is a CC-licence to use the data. If my earlier reading of clause 1 was wrong, and I can't agree to the CTs and upload CC-BY-SA data - why? If it's related to clause 3, would that same reason stop people uploading ODbL-only data in future since it can't be re-licensed to CC-BY-SA (which is listed)? I don't know why. I do know that the licence working group have thought a great deal about it and are always happy to accept constructive suggestions about it. I anticipate someone coming along and explaining. In answer to your last question: yes again. ODbL data does not allow you to make a grant as wide as that in clause 2. Whether any of these problems are real (rather than imagined) is another matter. In practice I suspect the likelihood of anyone bringing legal action for infringement is negligible. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] definitions of free and open
2011/4/11 Krysha Krysha kry...@rambler.ru: Hello! Why in the Contributor Terms does not contain definitions of free and open. Different organizations may have different understanding of these terms. For example, there is a Microsoft Open License ... The absence of these definitions stops me from taking those Contributor Terms. I think the idea is that it will be up to contributors to decide whether a licence is free and open rather than leaving it to lawyers to do so. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] definitions of free and open
On 11 April 2011 08:09, Grant Slater openstreet...@firefishy.com wrote: In addition, Contributor Terms v1.2.4 also now reference http://www.opendefinition.org/okd/ Source: http://www.osmfoundation.org/wiki/License/Contributor_Terms Yes. If the matter ever came to court - which seems rather unlikely and lets hope it does not - the phrase free and open would probably be understood by a court as limiting the power of the contributors' vote. I suspect that a court would wish to give the contributors a wide discretion but it would be fettered to some extent by the phraseology. It also (I hope) gives a lead to contributors as to the intention of OSMF if any vote were held. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Compliance timeline
On 8 April 2011 18:10, Ed Avis e...@waniasset.com wrote: Interesting. So in your view the newer CTs restrict the OSMF in certain ways that wouldn't be the case if mappers simply licensed their data to the OSMF under CC-BY-SA 2.0. I suppose that by the same logic the automatic upgrade provision That much is clear. The CT's impose various obligations on OSMF beyond those under CC-BY-SA, in particular in ODbL 1.0 is also nullified. Yes. Assuming we are talking about: http://www.osmfoundation.org/wiki/License/Contributor_Terms Clause 3 restricts OSMF to a specific set of licences. If the CTs specify CC-BY-SA 'and' ODbL 'and' DbCL, does that mean the OSMF is free to distribute under any of those it chooses, or must it be all three? (according to your reading of the proposed CTs) They don't so specify. The list is disjunctive: only under the terms of one or more of the following licences: ODbL 1.0 for the database and DbCL 1.0 for the individual contents of the database; CC-BY-SA 2.0; or such other free and open licence ... So OSMF may use any subset (including the empty set) of such licences. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 09:46, Richard Fairhurst rich...@systemed.net wrote: Francis Davey wrote: droit d'auteur does not (as I understand the term) include database right. Its un droit des producteurs de bases de données rather than un droit d'auteur (forgive my atrocious French - its been nearly 30 years since I studied it). Nearly 20 years here, but FWIW, http://fr.wikipedia.org/wiki/Droit_d'auteur claims that la directive 96/9/CE accorde... la protection du droit d’auteur... aux bases de données. Right. I'm not sure how that tells us very much. The point is that databases are protected in two ways by the directive: (1) as copyright and (2) as a new database right which is distinct thing (sui generis), so the directive: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:FR:HTML says at article 3(1): Conformément à la présente directive, les bases de données qui, par le choix ou la disposition des matières, constituent une création intellectuelle propre à leur auteur sont protégées comme telle par le droit d'auteur. Aucun autre critère ne s'applique pour déterminer si elles peuvent bénéficier de cette protection. i.e. databases that are their author's own intellectual creation obtain protection under Droit d'auteur. But article 7(1) introduces a new database right: Les États membres prévoient pour le fabricant d'une base de données le droit d'interdire l'extraction et/ou la réutilisation de la totalité ou d'une partie substantielle, évaluée de façon qualitative ou quantitative, du contenu de celle-ci, lorsque l'obtention, la vérification ou la présentation de ce contenu attestent un investissement substantiel du point de vue qualitatif ou quantitatif. Where the condition for qualification is substantial investment (rather than traditional authorship). The shape of the new right is different. There's a translation of the French code here: http://www.legifrance.gouv.fr/html/codes_traduits/cpialtext.htm From which (I hope) you can see that droit d'auteur and droit des producteurs de base de données are quite different things. See: http://www.legifrance.gouv.fr/affichCode.do;jsessionid=CFFB5CB2278C47661B863BC58EA5C281.tpdjo03v_2?idSectionTA=LEGISCTA06161660cidTexte=LEGITEXT06069414dateTexte=20110324 Where it is plainly said: Cette protection est indépendante et s'exerce sans préjudice de celles résultant du droit d'auteur ou d'un autre droit sur la base de données ou un de ses éléments constitutifs. i.e. droit d'auteur is a separate concept. I hope that makes sense and is not too mad. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 13:13, Simon Poole si...@poole.ch wrote: I was referring to the 1.2.4 French translation http://www.osmfoundation.org/images/c/c2/2011-03-08_OSM_Contributor_Terms_1.2.4_FrenchTranslation.pdf What you have is the translation of 1.0. The issue wrt to the wording is if to use a strong must not infringe vs. a weak should not infringe (in the German translation). But contractual obligations aren't strong or weak. Can you explain what you think that difference means in terms of the obligations either would impose on a contributor? It may be that German law knows of a difference between strong and weak obligations. English law doesn't (yes there's a distinction between terms which do or do not entitle the other party to repudiate, but we aren't worrying about that here). In other words, the proper question is: what obligation does the English contractor terms place on a contributor, and then translate that obligation into German. I'm not sure how close the existing wording is to one of the various ones I suggested, but the intention is that the first part of 1(a) indicates OSMF's goal, and only the second part imposes an obligation, but as I explained earlier I am not sure that is what it does. Can I suggest that it would be a really really good idea to have the contributor terms drafted in one go by a professional lawyer, rather than bit by bit. I've had various requests to look at specific parts of the wording, but really the contract has to hang together as a whole. What needs to happen is that (whoever it is who makes these decisions) decides what they want the terms to do and then have them drafted to do that. Drafting good legal copy is not something that should be done like a wiki document. I realise everyone works very hard over this, but none of the versions I've seen make me happy in numerous ways. I speak as someone who has entirely no view as to what they should do, but since I draft exactly this kind of contract all the time (and sadly litigate others, though not ones I have drafted), I have quite strong sensibilities about how they should read. My spare time is pretty limited and my pro bono effort is directed at various other organisations (My Society, ORG and the One Click Organisation) but just to get this settled I'd be happy to take formal instruction from OSMF to sort this out properly without charge. But I don't want to be a self-publicist. It may be that everyone is happy with the CT's and feels no help is needed. There are almost certainly other (large) law firms that would be happy to offer a free consult so they could associate their name with OSMF's (which is now getting pretty famous). Anyway, I'll see what anyone thinks about that when I am back from holiday. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 13:27, Richard Fairhurst rich...@systemed.net wrote: http://www.osmfoundation.org/wiki/License/Contributor_Terms/FR Excellent. Its nice not to have to work from PDF's. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Request for clarification (for German translation) of CTs 1.2.4
On 24 March 2011 09:29, Francis Davey fjm...@gmail.com wrote: In context (which is how all contracts are read) it clearly means that the purpose of the contract is to ensure that the contribution of data does not infringe and to that end the contributor gives a warranty as to their state of knowledge about their right to authorize OSMF to do certain things. This is the 1.2.4 version. The French version: http://www.osmfoundation.org/wiki/License/Contributor_Terms/FR Clearly says something quite different as far as I can see, namely that the contributor agrees _only_ to add content for which they own the intellectual property. There's no clause that says which language contributor terms prevails - presumably whichever a contributor agrees to - so there are a multiplicity of agreements. Also puzzling is the distinction in clause 1. The first sentence says: Dans le cas où des Contenus comprennent des éléments soumis à un droit d’auteur, Vous acceptez de n’ajouter que des Contenus dont Vous possédez la propriété intellectuelle. But droit d'auteur does not (as I understand the term) include database right. Its un droit des producteurs de bases de données rather than un droit d'auteur (forgive my atrocious French - its been nearly 30 years since I studied it). propriété intellectuelle is a much wider term, which includes industrial property. Maybe there's a good reason for this wording and I'm not either French or a French lawyer. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Someone ought to do something ... dealing with violations of OSM's geodata license
On 21 March 2011 14:53, David Groom revi...@pacific-rim.net wrote: - Original Message - From: Michael Collinson m...@ayeltd.biz To: Licensing and other legal discussions. legal-talk@openstreetmap.org Sent: Sunday, March 20, 2011 4:23 PM Subject: [OSM-legal-talk] Someone ought to do something ... dealing with violations of OSM's geodata license - A member of the OSMF board or LWG takes up the particular issue. This depends very much on personal enthusiasm. It requires initial tact - most instances are neglect/cannot be bothered rather than purely wilful. It requires persistance and follow-up, - we generally get an oh we will fix it immediately ... and then they don't. It requires careful coordination within the OSM/OSMF community to provide a united front. It may require research - for example, how exactly should a TV ad provide a CC-BY-SA atttibution? And lastly, future cases may involve bumping up to formal legal help and legal action. Not easy for one person to do. I certainly agree that taking legal action should be low on any list. It can be expensive, risky and time consuming. If you want to prevent unattributed uses and so on, having a dedicated team of volunteers to work out the best approaches (and different approaches will work in different ways in different circumstances) is probably best. Whether you want to do that is another matter. [snip] Ignoring the practicalities above, once someone has agreed to the CT's they effectively assign the majority of their rights to OSMF in respect of data held by OSMF, with that assignment of rights I question from a legal point of view who but the OSMF are actually able to follow up legal breaches. They don't assign their rights. The CT's don't operate like that. This isn't just a pedantic observation, but quite important when it comes to enforcement in the UK (it will differ in other jurisdictions of course). Here the copyright owner or owners must eventually join in any claim, although a licensee may, in certain circumstances, be able to obtain interim relief such as an injunction. There are ways around this with the permission of the court, but it would require some care to bring a claim. There's also a possibility that some IP is jointly owned or (in the case of the database right) owned by OSMF. Certainly if someone contributes substantial IP to OSM they don't lose the right to sue for an infringement of that IP. That is why talking of an assignment is misleading. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CC-BY-SA / Non-separatable combination of OSM+other
On 2 February 2011 20:02, Peter Miller peter.mil...@itoworld.com wrote: Indeed, I don't believe that there are any lawyers in the house! I do wish that the Foundation would pay for one from time to time to help with general questions like this which matter a lot to potential users of our lovely mapping. Yes. Sorry. I simply haven't had time recently to contribute at all helpfully. Too many hearings and too many clients with problems to afford any spare for this. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CTs and the 1 April deadline
To answer Robert's question. In my view clause 2 needs - and I hope that it will include in its final version - a limitation that you only grant a licence in respect of any rights that you have. The aim (I believe) is this: * the contributor licenses very broadly OSMF to permit them to use any rights (in copyright or database right) that the contributor has in the data contributed * whether or not the contributor has any intellectual property rights in the data contributed, they are asked not to contribute data if that contribution would infringe someone else's IP rights, but they are expressly told they don't have to guarantee that is the case (because the contributor won't in general be a lawyer) * OSMF promises to use data in a restricted set of ways (as set out in clause 3 and 4). In order for this to work as planned, clause 2 needs some words of limitation eg and to the extent that you are able to do so. I realise I owe a response to a much earlier question about whether and to what extent contributing data that is later used in breach of an IP right might impact on the contributor (short answer: I doubt there's any risk). I'm just rather busy right now. Sorry. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] Objects versions ready for ODbL
On 21 December 2010 13:33, Simon Ward si...@bleah.co.uk wrote: OSMF is asking you to grant them non‐exclusive rights, essentially to do as they see fit, but you remain the copyright holder (where there is any copyright). I’m unclear on how copyright can be enforced in this situation, but the CTs also include a grant to sue for infringement. A non-exclusive licensee may, in some circumstances, be able to sue for copyright infringement. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 15 December 2010 19:06, Robert Kaiser ka...@kairo.at wrote: Francis Davey schrieb: There seems (to me) to be nothing wrong in principle in holding a vote by email You mean other than emails being easily falsified and there's not even the slightest guarantee that a normal email is transmitted to the right recipient correctly. No, those are practical rather than principled objections and there are ways of overcoming them (albeit with their own practical problems). NB: I'm not saying that its a good idea or not, I'm simply not making comment on practicalities. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 13 December 2010 22:46, Anthony o...@inbox.org wrote: It's unclear to me whether a 2/3 majority of active contributors have to vote yes, or merely 2/3 of some unspecified quorum of active contributors. It is extremely unlikely that any English court would think so. The phrase a 2/3 majority vote of active contributors would be understood in its natural way, namely that 2/3 (or more) of all active contributors must vote in favour of the change. If there was to be a quorum then the terms would say so. However changing active contributors to all active contributors ought to dispel any shadow of a doubt on that point and does not read unnaturally, so I'd suggest it as a change. NB: we've been asked to suggest changes to the CT's if we think they are unclear. I cannot remember whether you caught that. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 14 December 2010 09:28, Jukka Rahkonen jukka.rahko...@latuviitta.fi wrote: I do not really believe that the turnout percentage in any OSM poll would reach 66.7 percent, even if we count just the active contributors. It is nowadays a good percentage even in the election of the parliament. In year 2007 in Finland the turnout seemed to be 67.9%. And because all active contributors for sure would not vote for Yes it would mean in practice that OSM license could never be changed. Myself I have been thinking that the 2/3 majority means the share of those who vote. Obviously it would be better to write it clearly into the CTs how we want it to be interpreted and not to ask it afterwards from any English court. Well, 2/3 of those who vote and 2/3 of all active contributors are very different in terms of how much support a change needs to get. If a change is really popular then it should be possible to engage 2/3 of those who are actively contributing enough to get them to vote in favour. Parliamentary votes aren't really comparable. Anyway, this is a governance issue rather than a legal one. As drafted the CT's will require 2/3 of all active contributors, not merely those who vote. If there's a desire for a different effect, then some change in drafting would be needed. If not, then it is probably worth nailing the point as I have indicated. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 14 December 2010 15:21, Anthony o...@inbox.org wrote: I wouldn't suggest a paper ballot either. What would you suggest? A website with some form of authentication given to contributors when they sign up to the CT's? -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 14 December 2010 14:08, Anthony o...@inbox.org wrote: Right, well, I thought someone was going to respond with of course it's not 2/3 of all active contributors, so you've certainly confirmed to me that this is unclear, as in can be interpreted by non-lawyers in differing ways. I'm afraid I'm not a non-lawyer so I can't add any more data points for that analysis. The meaning of words in a contract is a question of fact though. That wouldn't make it any more clear to me. Removing the majority vote part would, though. Ah, I see what is causing you confusion. 2/3 of active contributors would allow consent to be sought in any (unspecified form) rather than necessarily having something that would naturally be described as a vote and that would simplify the requirements OSMF would have to meet. On the other hand, the response by Frederik points out another ambiguity - what it means to respond within 3 weeks to an email. Yes. As I said, this is a problem I've raised for a while. It might be worth thinking about what exact process OSMF had in mind. Eg, a single email do you consent, with response/non-response, or something more formal. The indirect object of respond could then be clarified. Also, the idea that the vote could be conducted via email is rather humorous. Can't wait to see the dispute over the hanging chads in that scenario. I'm not sure why its humerous. There seems (to me) to be nothing wrong in principle in holding a vote by email or indeed by any other electronic means. There are of course problems, but then so are there with paper ballots as we all know. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 12 December 2010 14:08, Robert Kaiser ka...@kairo.at wrote: If 67% is not clear in legalese, then legalese is stupid, IMHO. Let's abolish all legal rules and make contributing fun instead, then. There's no such thing as legalese as I've said before. The CT's don't say 67% they say 2/3, which is completely clear. The phrase at least a 2/3 majority vote has a pretty clear and unambiguous meaning. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] CT clarification: third-party sources
On 10 December 2010 08:28, Francis Davey fjm...@gmail.com wrote: Eg, the open government licence (UK) requires that certain conditions are met, eg that data protection rules are not broken and that a form of attribution is used. The contributor would be in breach of the licence if they contributed without ensuring attribution at the time of contribution (for instance). But, _after_ the contributor has made their contribution, they don't need to rely on the licence to do any act restricted by IP rights. The contributor has ceased copying/making available to the public etc. The contributor cannot be primarily liable after that, whatever OSMF may do. My mistake: I doubt that the UK open government licence is sufficiently viral for this to be a possibility. I am sure readers can think of some more specific example of licence/licence violation and it might be useful to have one concrete example to work with. Moral: anything I type before 9:00am is going to be suspect. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] Unsetting CT flag
On 8 December 2010 17:23, Anthony o...@inbox.org wrote: The 1.0 CT doesn't even mention the database right. 1.2 (*) says that the individual contributors grant the right to the OSMF, but according to you the individual contributors can't have the right in the first place. I think there's some mistaken use of terminology here, which may be confusing some people (even if not you). As it stands 1.2 grants a licence to use the contributed data in any way restricted by the database right (or copyright). It does not grant the right itself. OSMF does not become the owner of the right as a result. There's a lot of complex law here, but my best guess is that the sui generis right is first owned by the contributors collectively, so that their permission is required for its use. There are problems with that view, but other views are more problematic. As you know database right law is still in its infancy, so its hard to be sure. The situation doesn't seem any more clear to me, except for the fact that the individual contributors clearly don't have the right. But I'm not sure that is clear at all. I'd certainly think there's a good arguable case that the contributors jointly own a database right in the map data. you say that's already clear anyway, because it would be impossible. If it is possible for the individual contributors to hold the database right, then the individual contributors *should* hold the database right. That is the position under CT 1.2. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] How Can OSMF convince me to accept the New CT and ODBL
On 8 December 2010 21:54, ce-test, qualified testing bv - Gert Gremmen g.grem...@cetest.nl wrote: [snip] 2. Article 3 makes you transfer the ownership (not exclusive) of your entered data to OSMF : That is a Problem !! OSMF is gathering this way the (non exclusive)ownership of OSM as a whole. OSMF is not a community but a foundation/association (company by guarantee in british legal terms) The transfer of ownership is against it own principles But there is no transfer of ownership. All that the CT's do is give OSMF a licence. If you want OSMF to maintain a server hosting OSM data then it needs a licence to do _that_. In practice you want it to be able to license the data (via a sublicence) to other people, otherwise there would be legal obstacles to people using it. The only alternative is to ask contributors to license the world using some compatible licence and then for OSMF to try to be licence transparent as some other sites do (knol for instance). Either way the contributor licenses. The former seems (to me) to be easier and less problematic. Wiki Citation: It is important to understand that the OpenStreetMap Foundation is not the same thing as the OpenStreetMap project. The Foundation does not own the OpenStreetMap data, is not the copyright holder and has no desire to own the data. Anyone can set up a few servers and host the OSM data using the same or different software. In this respect the Foundation is an organisation that performs fundraising in order to provides servers to host the project. Its role is to support the project, not to control it. Try to match article 3 with this wiki citation… This needs to be cleared up. I've seen this point discussed many times before. The CT's do not transfer ownership. What do you advocate? -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 7 December 2010 20:44, Mike Collinson m...@ayeltd.biz wrote: And to confirm ... the new phrase was introduced by mistake when initially setting up the 1.1 draft document and carried over into 1.2. I have removed Cool. Thanks for the info. it and checked all the other wording, though I'd certainly appreciate another check. The only difference between the proposed 1.2 text: http://docs.google.com/View?id=dd9g3qjp_933xs7nvfb and currently released 1.0 text http://www.osmfoundation.org/wiki/License/Contributor_Terms should be diff-marked with colour highlighting and strike-outs. Thanks. Some suggestions - if you are interested: - a contributor natural person should probably read a natural person - In 4: At Your or the copyright holder’s option should probably have copyright owner's for consistency. - There's an odd or more at the end of clause 5 which I cannot account for. - do you want to delete , except as provided above in Section 1, from clause 6.1 since section 1 provides no warranty? - do you want to change whether written or oral to whether written, oral or otherwise in 7? It may be that any agreement was implied and therefore not written or oral. - do you want to qualify within 3 weeks in clause 3? Such as within 3 weeks of being notified of the vote? Query: how big is the OSMF membership? Would resolution of the members of OSMF not be better since a resolution is a well defined term with rules on how one is conducted, its quorum and so on, whereas a vote might not be understood to be that. This could all be handled elsewhere so it may not be a worry. Style (really feel free to ignore this): I'd feel happier if the heading style was consistent. Me, I like headings in contracts I draft. They make them easier to read. Both rights granted and miscellaneous could be put in the same style as Limitation of Liability. You might also want to global replace You with you except where grammar requires you. Definitions don't _have_ to have initial capital letters, and it makes the contract look less stilted (in my personal opinion). NB: usual disclaimer, though I am a lawyer, I am not your lawyer and this is not legal advice, but merely something written during a rest from playing minecraft. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 7 December 2010 21:01, andrzej zaborowski balr...@gmail.com wrote: Can you explain what You do not need to guarantee that [contributed data is compatible with our license] means? Since OSMF is not bound to remove such conflicting data is there any possibility a user can submit such data without automatically being in violation of the third party's rights? Well, if a contributor contributes data over which there is some IP right, then that may constitute a form of secondary infringement by the contributor. There's no way to avoid this. Putting a contractual provision requiring the contributor to warrant compliance, won't stop them being liable if they make a mistake (although it might make them more careful). I doubt that imposing a duty on OSMF to remove any data which they discover to be unlawful would help (there's still a high chance of some form of secondary infringement). Imposing a duty to remove any data which would be unlawful for OSMF to distribute whether OSMF knows or not (in other words transferring the warranty to OSMF) would impose an serious burden on OSMF to guard contributors from their own mistakes. It could be done, but it would require serious thought. So, I think your objection has substance, but it is directed at the wrong thing. (I have the same doubt about not guaranteeing compatibility with future OSM licenses) Well, that's an impossibility (its hard enough to check compatibility with existing licenses). If OSMF agrees to make reasonable efforts to remove offending data, that should be enough to absolve any contributor of secondary liability. We want to respect the intellectual property rights of others may be enough to do the trick. Some relatively modest statement such as and we will do our best to make sure that we do or words to that effect would be even better. Bear in mind that secondary liability requires something like authorisation or joint infringement. Neither of those is likely where a contributor, in good faith, submits data on the basis that OSMF does not wish to violate IP rights. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 7 December 2010 22:10, andrzej zaborowski balr...@gmail.com wrote: Thanks for the explanation. Would you agree that the sentence You do not need to guarantee that is is, but [...] is not having any effect then? It might have an No. Its purpose is to expressly state that the contributor does not guarantee to OSMF that it would be lawful for OSMF to licence the data. Earlier versions asked the contributor to give a warranty that the contribution was free of others' IP rights. My understanding is that that was felt to be unfair to contributors (who are after all not lawyers). What it does not do is prevent the contributor from being liable to third parties in some way. *That* would be difficult to do since its not in OSMF's power to absolve the contributor from any liability they might have. So the existing state of affairs is: - contributors contribute at their own risk, if the act of contributing is itself an infringement, that's their problem - OSMF assumes any risk of publication of that data and cannot sue a contributor if they wrongly contribute data which later turns out to be incompatible with one or more of OSMF's licences - whether a contributor could be liable for some kind of secondary liability is very difficult to say since IP laws vary worldwide and so do third party licenses, my sense is that the risk is small since the wording is not easily compatible with the idea of authorisation In particular the you do not need to guarantee... looks to me to count against authorisation. If the contributor did guarantee that would look more like authorising OSMF to do what it should not do. As I said, some reasonable obligation on OSMF to try to avoid IP violations might do the trick. But you want to be careful about imposing too onerous a duty on OSMF. effect of discouraging or encouraging some action (but as I see it, it's encouraging the wrong thing). What do you suggest? The only practical option I can see is for OSMF to supply a list of approved third party licenses that are compatible with OSMF and refuse anything not licensed under one of those. I guess that it might have an effect where contributing incompatible data in the proposed wording doesn't terminate the contract between contributor and OSMF, while without that sentence the OSMF could tell I'm not sure what you mean by terminating. Breach of contract does not ordinarily terminate the contract. Even a fundamental breach doesn't necessarily do so. a contributor our contract wasn't valid because you had submitted data that was incompatibly licensed on this and that day. No. That isn't how English contract law works. The current wording is intended to imply (sure its not express, but the goal is fairly short wording I understand it) that OSMF doesn't have any obligations to relicense the data if it would be unlawful. That's what 1(b) does. 1(a) does a different job. I think my doubt was the following: if a contributor uploads contents of a third party database that is ODbL 1.0 licensed, to OSM; OSM then changes its license and keeps distributing the third party contents, then if the contributor is not liable for the damage that the third party may suffer, who may be liable? I think it would be an enormous stretch for any IP owner to try to show secondary liability on the contributor in that case. Its something that could be nailed down even further of course. If I was drafting the contributor terms with certainty (rather than brevity) in mind, they'd be much much longer and there'd be no doubt in anyone's mind what they did - that is in the mind's of those who bother to read contracts and that is the problem. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Database right for public transport
On 6 December 2010 20:57, Andrei Klochko transportspl...@gmail.com wrote: Hello, [snip] strategy, to avoid trouble. Any advice on such an entreprise? I'm not sure that this is really on topic for this list since it doesn't impact legally on open street map (or it shouldn't). Its also the kind of thing you should talk to a lawyer, preferably a French lawyer, about rather than asking for advice on list, since you may get more reliable advice that way. Also - this is true in this country but may not be true in France - lawyers prefer to be formally instructed when giving advice of this specificity in case the advice is acted upon and then the person they advised gets into difficulty. The formal instructions are a form of protection for the lawyer. Having said that you might want to think carefully about the difference between database copyright (in L112-3 of the intellectual property code) and the sui generis database right (in L341-1). There's a reasonable argument, based on the Fixtures Marketing cases (see http://curia.europa.eu/fr/actu/communiques/cp04/aff/cp040089fr.pdf) that a transport company does not acquire a database right in its own timetable data because it does not expend resources collecting it (in French the word is la constitution rather than collection). It makes the timetable itself so does not need to collect it. As the creator it has no database right (an odd but important result). I think that is the thrust of your argument. But, a transport company might be able to claim a database copyright in its timetable on the basis that it is an intellectual creation. The idea of the database directive was that a common standard would be applied across all EU states for the threshold test for database copyright. My impression is that the threshold for database copyright is lower in France than it is for most other forms of copyright, but that is still somewhat uncertain I think. The reason this may be a real issue is that it does require intellectual creativity to put together most transport timetables. Considerable thought needs to go in to ensuring that they work. On the basis of a recent High Court case in which the football league's fixtures list was accepted as an intellectual creation, I am fairly sure that such timetables are copyrightable as databases in England. The standard _ought_ to be the same in France, but there has been no direct court of justice authority on the point as far as I know. In other words: I don't think it would work. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 3 December 2010 14:14, Anthony o...@inbox.org wrote: Okay, true. I still think it accomplishes something very important which is the status quo under CC-BY-SA. OSMF doesn't get any special rights which, for instance, a fork wouldn't have. Ah, I see, and I'm fairly sure that wasn't what those I've spoken to want to achieve, but I may be wrong and I'm happy to be corrected. You must know more than I do, because I don't think you can speculate on the intent of a phrase without at least knowing who added it. It That's what a court would have to do of course, but it may be that we disagree on something else (see below). very well may have been added precisely for the effect of making everything effectively PD. I know that's the only reason I supported CT 1.2, though I wasn't dumb enough (this time) to point it out. Yes. I am fairly clear that some people don't want to make OSM effectively PD - they do want to restrict its usage that is why ODbL is being used (otherwise why bother with it)? It's not superfluous, because the obligation on OSMF is to license the contents *as part of a database*. The ODbL applies to *the database*, not the contents. (In some/most/all jurisdictions, if you don't agree to it, you can probably ignore it, because there aren't any rights in the database. But probably in at least some jurisdictions you can't ignore it, due to sui generis database rights and/or sweat of the brow copyright in the database itself). Yes, it makes the DbCL part superfluous, but as I've explained before the DbCL, if *it* does not make the work effectively PD, is itself superfluous. And if you look at the history, the DbCL language was added at the same time the and any party that receives your contents was taken out (http://www.osmfoundation.org/index.php?title=License/Contributor_Termsdiff=231oldid=204 which, by the way, was *after* the vote). Well, that's not the whole story (from a legal analytic point of view) - but I'm sure you know that. The extra problem is that it may be (it seems likely to me) that the only sui generis database rights (or for that matter database copyright, though that seems like a long short to me in the jurisdictions I know) that OSMF is likely to have now is that which it is licensed to sublicense under the contributor terms. If all the CT's give to OSMF is also given to everyone (who receives the contents, which is of course anyone relevant) then the ODbL is completely superfluous since ODbL can't restrict that which is already permitted by another means (or can't usefully do so) even in countries with a sui generis right. If that's the intent then there's no point at all in messing around with paragraph 3 which can just be removed. In any case, even if the requirement were superfluous (which, as I explained, it isn't), I don't see any alternative explanation. A mistake? Someone infelicitously drafting the licence? It does happen you know :-). (*) It has been pointed out previously that we should probably *require* OSMF to release the database under a free license, rather than merely *allow* them to, but as it stands they may, but don't have to. H, at the moment paragraph 3 requires OSMF to use or sublicense the contents, which isn't quite the same thing as release I'll grant you, but there is some obligation in there. If I were instructed by OSMF I'd probably suggest that wasn't what was wanted. Its an open ended commitment, which is always a bad thing. In general one wants to at least make the obligations mutual. The obligation is qualified by 1(b) though. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 2 December 2010 01:36, Anthony o...@inbox.org wrote: Damn. I was hoping no one was going to notice that before the terms went into effect :). I'm pretty sure I pointed out difficulties with the wording a reasonably long time ago. Two remarks: - A court might interpret it in context to mean merely that OSMF may grant these rights to others (on the ground that if it were intended to permit anyone downloading the contributed data to receive the same rights as OSMF that would make nonsense of paragraph 3). I wouldn't put too high a probability on that happening. - OSMF may itself have rights in the data. A point we have discussed before is whether OSMF has any database rights of its own. I don't know the details of the factual situation, but from what has been said that seems unlikely, though things may change (OSMF's role may not stay static over the years). If OSMF did have its own rights then it would be possible to infringe them even with permission from the contributors. So, its not quite as simple as making the data PD, but it comes close. The better question to ask at this stage is, what is it for not what does it do? I didn't draft or propose this wording, but someone must have done and someone, or some people, must have an idea of what its function is supposed to be. It may be that a better wording to do (whatever it turns out to be for) will solve the problem, or it may be that there's a policy argument, which can be sorted out first before you get to the wording. Anyway, I hope that helps. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] New phrase in section 2
On 2 December 2010 15:43, Anthony o...@inbox.org wrote: I have no idea why it was actually put there, but one positive thing it does (besides nullifying the ODbL) is that it puts us all on an equal footing with OSMF. Pedantically: OSMF has obligations under the CT so there's no interpretation where the footing is equal or identical, but I see what you mean. My understanding was that this was not the intended outcome - that is that OSM data should not be freely usable by everybody who receives it. As I have already said, I'm not sure that your interpretation is 100% certain. The CT's at the moment place an obligation on OSMF to licence under one of a series of licences, which would be an odd requirement if such a licence were superfluous. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Why is the data protected?
On 28 November 2010 19:51, Andreas Perstinger andreas.perstin...@gmx.net wrote: Hi, sorry for my probably stupid question, but I'm rather new to OSM and still learning :-). As I understand it, we build a database which we fill with coordinates and their tags. Because of the license change some (or most or all?) are afraid that we loose data from the users who don't sign the new CT or don't like the new license. But why? Isn't the content the users provide just facts (at least the coordinates, some tags could be questionable)? Why is there a problem to distribute the database from day x on under the new license regardless if the users accepted the new CT or not? There are two possible answers (I have no idea which applies, or if both applies): (i) The data may actually be protected, eg by the sui generis database right that applies in the European Union and EEA, just because it is just facts doesn't mean there is no IP in it - and worse maybe some of what has been contributed is in fact a map or part of a map and so protected by normal copyright. (ii) As a matter of principle (not of law), contributors have been agreeing to one licence and one might think it was good practice to ask them to agree to a difference licence - just because you can take something legally doesn't mean you should. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Database and its contents
On 23 November 2010 12:46, Emilie Laffray emilie.laff...@gmail.com wrote: [snip] If I remember correctly, UK have recently excluded databases from copyright protection since 1997 due to the introduction of the European database law ( http://en.wikibooks.org/wiki/UK_Database_Law for more information). Not quite. A database may attract either database right, copyright or both. The change to database copyright (as opposed to database right) is that copyright in a database has a harmonised subsistence threshold across Europe (own intellectual creation). Whether something is, or is not, a database for either purpose is a relatively straightforward question and is without prejudice to whether or not it might be derivable (or derived from) some other kind of work. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Database and its contents
On 23 November 2010 15:22, Grant Slater openstreet...@firefishy.com wrote: On 23 November 2010 14:57, Ed Avis e...@waniasset.com wrote: No copyright and database-right are not universal the world over, Yes - it's my understanding that the sui generis database right exists only in Europe - is that so? What difference does it make? It does not effect ODbL and that is what we are here to discuss. To answer some of the questions raised by my comment (and not just this one). The sui generis database right exists only in the EU and the EEA. Most of the other jurisdictions that I am familiar with (Australia, US, to some extent New Zealand) do not have specific database rights - what protection there might be for collections of information will generally be under copyright (and in most cases this will have a much higher threshold than database copyright did in the UK and is not simply based on the amount of effort put into collecting the data). There are other (non-copyright) principles that may apply, for example some species of hot news/misappropriation protection might apply to certain database in the US (but almost certainly not OSM). The sui generis database right is relevant to ODbL because the ODbL incorporates the database right into its definition section: [“Database Right” – Means rights resulting from the Chapter III (“sui generis”) rights in the Database Directive (as amended and as transposed by member states), which includes the Extraction and Re-utilisation of the whole or a Substantial part of the Contents, as well as any similar rights available in the relevant jurisdiction under Section 10.4.] So if another country outside the EU (or EEA?) were to implement a specific non-copyright protection of data, ODbL's database right protection would not apply to it. All countries with the sui generis database right have harmonised the threshold for database copyright as I have explained. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Database and its contents
On 23 November 2010 19:50, 80n 80n...@gmail.com wrote: To be precise a database right is earned when there is a substantial investment in obtaining, verifying or presenting the contents of the Yes. I was deliberately avoiding side-tracking the discussion onto the nature of the investment - I'm keen to avoid sounding like I am lecturing. database. Has the OSMF done enough to earn that right? Most obtaining has That's a good question and a tricky one. How much is substantial is not well settled in the case law - but many European jurisdictions seem to be quite generous at finding the existence of a right with relatively modest levels of investment. substantial could mean not merely trivial or a large amount. But your question does not exhaust the enquiry - has OSMF a database right (or could it obtain one)? Its entirely possible for a large number of people to work together on a project so that *jointly* they own a database right in a jointly created database. I don't know much of OSM's history, but I'm guessing that it started out like that, without any clear assignment of rights between the contributors (looking at a history of the CT's suggests this), so that what you may have is a joint work. If the contributors licence their database rights to OSMF then OSMF will have sufficient rights to sublicense under ODbL (assuming lots of other things are true as well - I'm just looking at the ownership question). I think it would be easy enough to defend OSM being a database and there being a database right in its data. Who owns it may be less important, unless you try to sue for infringement of course, but as I understand existing policy, that is not OSMF's intention. been done by contributors who are not members of OSMF and have no connection with OSMF. As far as I know OSMF has no verification function and certainly They have _some_ connection in that they contributed to OSM with which OSMF is connected. doesn't make a substantial investment in verification. As for presenting they host a server running Mapnik and provide a planet dump and some APIs. Their only investment is the cost of the hardware[1]. Quite. There's obviously a question of what substantial means - see above. In much of the database rights literature there is often a reference to the $ value spent to create the database in question. Presumably this is relevant to whether the right has been earned based on a substantial investment. How does OSMF measure up on this, having spent just a few thousand dollars on hardware? Hard to say, although investment does not have to be of money, but of resources, so lots of people working hard in their spare time as volunteers counts. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Database and its contents
On 23 November 2010 17:08, Ed Avis e...@waniasset.com wrote: Thanks. My followup question - which is not quite so much a question of pure fact, and addressed not to you but to the list in general - is that if database copyright applies wherever database right does, why not use copyright alone? Because it is much harder for a database to attract copyright protection than sui generis protection - especially for data collectors like OSMF. Database copyright arises when the database is the author's own intellectual creation. That means that some design or creativity has to have gone into the database - it can't simply be an assemblage of facts. Example: the football fixtures list for the English premier league require lots of thought (so the league convinced a judge) to design, so the collection of items of information of the form Arsenal v Chelsea, Tuesday 10pm at Emirates, has database copyright (and because the league produce it for their own purposes they don't get sui generis protection). Database right arises when there is a substantial investment. It focuses on work not creativity. Lots of work in making a database won't get you copyright but may get you database right. It is much more likely that OSMF attracts database right than database copyright. If I've misunderstood what 'database copyright' means, and it's not as strong as ordinary copyright, please correct me. It may depend on what you mean by not as strong as. They are just different things. Its best not to think of them in the same way. Although quite a few provisions are imported from copyright, there's a lot that is different. For example you infringe copyright by doing one of a list of things (copying etc) whereas you infringe database right by extraction or reutlisation (of a substantial part...). -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 18 November 2010 10:14, Ed Avis e...@waniasset.com wrote: OK, in that case this needs to be clarified too, since we have all confused ourselves on this list, and if we have done so others might too. So, in that case, if you must give sufficient permission to allow OSMF to choose (pretty much) any licence it wants in future, it would not be possible to add third-party data released under anything less than fully-permissive terms, even if it happened to be compatible with the licence OSM uses at present. No. That's not the case and on this point the draft licence *is* clear enough in my view. Its important to read the existing draft as is, rather than recalling what earlier drafts said. The existing draft aims to allow: - the addition of data that the contributor themselves can licence - in this case the contributor grants a perpetual licence to OSMF to relicense it under whatever current licence is being used (subject to conditions that are being discussed - but free and open of some kind), you need the CT to license the data somehow, or OSMF won't know what they can do with it - addition of data licensed under some other licence which looks like (to the contributor) it is compatible with the OSMF's current licence - there is no need for the contributor to be sure about this, but OSMF makes it clear that this is what it would like - data of the first kind can be relicensed later, data of the second can only be relicensed by OSMF if a future licence is compatible with the data's original licence conditions - a judgment call OSMF may have to make if/when it does that relicensing exercise I'd prefer some way of saying I got this data from X, much as wikipedia does for image uploads. I realise there are various levels of disagreement as to whether this is the right policy. I really am a neutral (and I hope not unhelpful) observer trying to offer what skills I have to make this work right. No, me neither. (Well I do have a view, which is that granting extra rights to a privileged body such as the OSMF is a bad idea, and we should all simply license our contributions under an agreed share-alike licence - but that is not part of this discussion.) I'm just trying to winkle out exactly what the proposed CTs are intended to mean. OK. I understand where you are coming from and thank you for keeping this focussed. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Best license for future tiles?
On 18 November 2010 10:19, Ed Avis e...@waniasset.com wrote: That's what you say, and I hope it is true. But others claim different things; some say that even once the work such as a printed map has been produced and distributed under CC-BY-SA or even CC0 terms, it is still tainted somehow, such that some legal force field prevents you from freely tracing it or otherwise turning it into machine-readable form. If this definitely isn't the case then it would be good to see a definitive statement to that effect, preferably attached to the licence itself. I know it sucks to have to refute every canard that somebody somewhere comes up with about the bogeyman ODbL, but this is in my view one of the big problems with the licence: it's so vague and complicated that if you ask three people about what it permits you get four answers. One problem is that where there is no contractual relationship (as there wouldn't be further down the chain of derivation/copying) the extent to which ODbL is enforceable depends on what (if any) IP rights a particular jurisdiction recognises in the licensed work and how that jurisdiction treats them. I can tell you (because this is one of my fields of expertise) that treatment varies widely (you knew that almost certainly) which means that answers will vary across space. Some of this is also developing. It was only this year that a UK court recognised (new style) database copyright in football fixtures lists. That was by no means a foregone conclusion. Multiply that sort of uncertainty across the world and you will find it difficult to get straight answers. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 18 November 2010 10:34, 80n 80n...@gmail.com wrote: In this case, where the content is from some third party and is currently compatible with ODbL but may not be compatible with some future license, it would be essential that detailed and accurate records of such contributions are maintained. Yes. Something like that would be necessary if you can't identify the original licence. Surely that is inevitable if (i) you want to be able to allow contributors to contribute data licensed CC-BY-SA or under some other licence (like many of the government licenses) and (ii) you want to be able to change the licence in the future. As I understand it (i) and (ii) are both desiderata. There would need to be a record of which licenses apply to each edit made by each contributor. And come the time of a future license change there would possibly be a purging of unsuitable content that would as problematic as the one currently proposed. Not quite. You would not need to seek anyone's permission to delete data, or indeed interact with contributors at all, except to allow the vote on the new licence. So it might be problematic, but in a different way. To me, this looks like a recipe for chaos. (shrug) maybe. I don't have a feel for the practicalities and its not really my call. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 18 November 2010 10:59, Ed Avis e...@waniasset.com wrote: That all makes sense but even in the revised 1.2 draft it is not implied by the language. The CTs ask you to grant an unlimited licence over the Contents, without any exemption from this requirement if some rights in the Contents are held by third parties. Since I cannot grant an unlimited licence to Contents derived from Ordnance Survey OpenData, I cannot agree to the CTs. Yes, indeed. This is a point I have made on numerous occasions already. I also understand that various proposed wording to update the CTs to take that into account has been proposed (by you, me and others) and I am sure its under consideration. The fact that no wording like that is there is almost certainly just a because its still in draft form. The LWG are, I am sure, well aware of the need to do something about the wording, but haven't had time to do so. See elsewhere on this thread where I suggest a clarified wording. Yes. I saw. I'm rather busy right now or I'd suggest something myself. I am somewhat reluctant to do too much suggesting on an open list since I am a lawyer and I'm not instructed by OSMF. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 17 November 2010 11:11, Richard Weait rich...@weait.com wrote: On Wed, Nov 17, 2010 at 6:09 AM, Ed Avis e...@waniasset.com wrote: Uh... but that 'condition on which the data was accepted' isn't specified anywhere in the contributor terms. If it really is a condition that OSMF will only distribute the data under an attribution-required licence, then the terms need to say so. Clarifying draft please? Current drafting is that OSMF will attribute itself on request, not that they will distribute under an attribution required licence. The former is much less restrictive than the latter. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 17 November 2010 16:58, Ed Avis e...@waniasset.com wrote: Francis Davey fjm...@... writes: If there is no guarantee that data which has been contributed under one licence will not be removed if it is incompatible with any future licence chosen, then it will restrict what data can be added, and who will be able to agree to the CT's. That's a misunderstanding of the draft. A contributor may contribute any data that is presently compatible (as far as they can see). This is good to hear, but it needs to be stated explicitly in the CTs. Is: Your contribution of data should not infringe the intellectual property rights of anyone else. [If you contribute data which is the intellectual property of someone else, it should be compatible with our current licence terms. You do not need to guarantee that it is, but you risk having your contribution deleted (see below) if it is not. not clear enough? The You do not need to guarantee surely says it as plainly as one can reasonably expect. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [DRAFT] Contributor Terms 1.2
On 17 November 2010 17:23, Ed Avis e...@waniasset.com wrote: This doesn't really counteract the main thrust of the contributor terms which state that you grant a perpetual licence to do any act restricted by copyright, database right etc. That needs to change to say that you grant just enough rights to distribute the data under the currently-used licence, but you are not required to give carte blanche for future changes. I misunderstood your objection. My understanding of the current policy is that a contributor does permit OSMF to use a different (future) licence. That is the reason for the perpetual licence. If all that was needed was that OSMF could use the data under the existing licence, then you could have a CT just like the old CT's. NB: I don't have a view on this at all and am not trying to influence policy. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Nearmap vs CTs: any progress?
On 15 November 2010 22:47, Steve Bennett stevag...@gmail.com wrote: It seems there is an assumption by the authors of the CTs that, as the contributor of data: 1) you own the copyright to that data; and therefore 2) you can, and are willing to, grant an extremely wide licence to OSMF I'm not on the LWG, but I believe that this is all being considered. Certainly these concerns have been raised before and I am sure they are well aware of the difficulties. I doubt they are making the assumption you suggest. However, this assumption is incorrect in at least these two cases: 1) You don't own the data, but it is licensed CC-BY-SA (or similar), and therefore it would be compatible with OSM. 2) You own the data, but are prevented for other reasons (such as NearMap's community licence) from granting the extremely wide licence OSMF requires. Clearly if there was that assumption then it would be wrong. The bottom line is this: the CTs make open licences an insufficient condition for inclusion of content into OSM. They do at present - I think this is a well understood question. I have certainly read statements by people who suggest this is desirable (that is excluding licensed data sets is a positive outcome). The current working draft license terms suggest this is not the view taken by its drafters and they do not intend it to be the outcome: https://docs.google.com/View?id=dd9g3qjp_933xs7nvfb I'm sad to hear that progress on the CTs has stalled - these versions It doesn't look stalled to me: http://www.osmfoundation.org/wiki/Working_Group_Minutes There is progress. seem horribly flawed. Or, if my above conclusions are correct, and intentional, there should be a big public statement explaining this change in policy. Not simply We are making changes to allow a future change in licensing, and this is a little administrative matter, but We have decided to no longer accept open source content. All submitted content must be either fully owned by the contributor, with no restrictions, or submitted with the explicit permission of the copyright owner. As you will see from reading the minutes, that doesn't seem to be the case. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] legal FAQ license
On 14 October 2010 09:07, Francis Davey fjm...@gmail.com wrote: I've not been following the detail of this discussion. One of my worries is that a lot of things are said - maybe off-hand - that turn into assumptions that feed into later discussion. Since this is an area of law (database/copyright) in which I practice I suppose I'm rather sensitive to misconceptions, but it does concern me that OSM might be making its policies based on what a bunch of people think, having chewed the matter over on a mailing list and without formal legal advice (and my contributions to the list aren't that - I'm not instructed by OSMF). I just wanted to clarify this, in case it sounds like I am playing the I am a lawyer card and implying that non lawyers are not entitled to an opinion on any legal topic - which would of course be quite mistaken. What I am saying is this: First, that in my experience the most useful and practical thing that my clients do (and which I encourage them to do) is to think about what outcomes they want, rather than focussing on the law. It may be that those outcomes are very difficult or impossible to achieve legally, but once they are clear in their mind(s) what their priorities are, I can then advise them how much risk is associated with different choices they might make. Armed with that advice they can then make a final decision as to what to do. Lawyers (and the law) should be seen as very much subservient to policy, their job is to help you work out what you can do, not what you should do. Note I said how much risk because a lot of my work is associated exactly with this kind of crowd-sources/online intellectual property law and as most of you know there is not a lot of certainty about how the law applies even the the web in general, let alone to the more interesting uses of it. Some things are more risky than others, but if we all wanted to be cast-iron safe, there'd be very little e-commerce. So, the argument about what you want to achieve and what you may be able to achieve legally aren't the same thing, Second point, also gained from long experience, is that getting the law right via a mailing list like this is rarely safe. That is why I make it clear that I'm not giving legal advice (and phrase my answers accordingly). When giving an advice a lawyer will study the problem hard, check for any recent case law, (possibly) re-read any relevant case law to make sure exactly what nuances of meaning there might be, consult any academic commentary and sometimes talk to colleagues, before giving an opinion. A mailing list answer rarely involves that level of consideration. I expect the same is true of non-lawyers on this list (if you do all the above, then that's impressive). I can't tell you what to do. I'm just contributing because (i) OSM seems as an outsider to be a great project (ii) some of the legal difficulties presented by OSM are interesting to my legal academic mind. This is just an attempt to share some of my experience. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Legal or not? user srpskicrv and source = TOPO 25 VGI BEOGRAD
On 2 October 2010 23:29, ed...@billiau.net wrote: I think that the argument is not that. The argument is really 'Is the Serbian government the legal successor of the Yugoslav government in Serbian territories?' Would an international court give the rights to the Serbian government? I think that there is a possibility either way - that the copyright could have expired with the dissolution of the Yugoslav government - or - that on Serbian territory the rights to Yugoslav government went to Serbia. I'm not sure that is the right question and, to that extent, I suspect that much of this conversation is a red herring (although it may be interesting). In particular I doubt there is any truly international court which would have any jurisdiction that was in any useful way binding on national courts. If (say) Serbia were to use OSMF or an OSM user in London, the local court would have to decide whether - as a matter of UK copyright law - Serbia were entitled to a copyright in the maps/data/whatever and if so whether it could be enforced. The Berne Convention requires that we afford the same protection to foreign copyrights as we do our own, so a court in England might well decide that Serbia could enforce these copyrights. Ditto pretty much any court in any country that was a signatory to the Convention. Of course there are massive caveats here: there might be no copyright in the data; no-one might bother to sue anyway (I've no idea how aggressively Serbia would try to enforce rights it believed it had). I'm just looking at the specific question of Serbia. As far as I know no-one has objected to either the Federal Republic of Yugoslavia's declaration of succession to the Berne Convention in June 2001 or Serbia's declaration of continuation in September 2006, but I rarely have to deal with this kind of cross-border issue in my work, so I haven't looked into the question thoroughly. A final note: the fact that the maps are *of* a country other than Serbia has no relevance whatsoever to the general question of copyright ownership. Countries do not own data about their geography under the Berne Convention or any WIPO treaty. It may be that the law of Yugoslavia did contain such a restriction. If that is so, I don't know about it. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] OS Opendata amp; the new license
On 28 September 2010 12:03, Frederik Ramm frede...@remote.org wrote: Any future license change would then be constrained to the common denominator of all these licenses *or* risk repeating all the data loss whining that we're seeing now. Yes. That's almost right. Either you permit datasets licensed under some other licence and accept that limits the relicensing you can do, or you don't permit them and retain the flexibility to relicense. Its really not my place to have any view about this. I am just trying to be helpful - which I hope is the case. Whether or not you do this, and to what extend you do, is a matter for OSMF not me. The current version of the CT's attempts to retain near maximum flexibility by having the contributor grant a very broad licence to OSMF for use of the data. That grant is not compatible with most well known open licenses such as CC-BY. If there is a desire that any such data be added, then the CT's should reflect that, if not then the broad grant is the better option. My specific point was that *if* you want the CT's to be permissive about importation, then it is fairer on contributors and clearer to provide an express list of compatible licenses - to avoid contributors having to make the judgment themselves. This does create work though and so is not cost-free. It may be that some specific wording of the CT's would do a similar job. In my view a list of approved licenses is easier, and it means you have more control over what is being contributed. As I have said before there are two distinct issues here (1) what contributors may contribute and (2) what OSMF may incorporate under its licence. The problem (if that's what you see it as) with data loss at the moment is to do with the earlier versions of the CT's. Data was contributed on condition that it be released under a specific licence. The problem you identify has a different origin: possible incompatibility between data that has been imported subject to some open licence such as CC and the licence that OSMF may use. So, a CT that permitted lots of datasets to be imported, would not necessarily prevent OSMF moving towards a more permissive licence of its own (with the caveat that imported data may have more rights associated with it), its not quite the same situation. Hence my almost right above. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Would The ODbL and BY-SA Clash In A Database Extracted From a BY-SA Produced Work?
On 8 September 2010 02:26, Anthony o...@inbox.org wrote: does this count, given that the contract (CT) is British law? Yes. If the intellectual property exists because of the Australian Copyright Act 1968, then any transfer of that property would have to comply with the formalities of the 1968 Act. Probably depends what court you sue in. An Australian court is unlikely to accept the validity of a contract which is unlawful in Australia. It shouldn't matter _where_ you sue. In principle at least the court seized of the matter should apply the usual principles of private international law to decide what the applicable law is and then apply it. This is a complex topic, but put simply: the CT's select English law as the applicable law, so that would be the legal system used to decide its validity etc as a contract. However, I find it unlikely that Australia bans the grant of non-exclusive licenses over the Internet. That would seriously screw up e-commerce to the point of ludicrousness. Not to mention kill all open source projects (the ODbL, as well as CC-BY-SA, GPL, GFDL, etc. are all non-exclusive licenses). It doesn't. Section 196 of the Copyright Act requires an assignment to be made in writing and signed on behalf of the assignor. The Australian provisions are almost identical to the English ones. I don't see anything that would suggest that a non-exclusive licence cannot be made electronically (as you say, the consequences might be quite severe). Its also quite possible that Australian law follows English law in accepting something like the acceptance of the contributor terms as being both made in writing and signed. It might depend on how the transaction is logged - if it isn't, it is less likely to be so accepted. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Would The ODbL and BY-SA Clash In A Database Extracted From a BY-SA Produced Work?
On 7 September 2010 16:13, Anthony o...@inbox.org wrote: On Tue, Sep 7, 2010 at 11:00 AM, Anthony o...@inbox.org wrote: On Tue, Sep 7, 2010 at 10:27 AM, Rob Myers r...@robmyers.org wrote: On 09/05/2010 06:01 AM, Anthony wrote: I think that it's the same with OSM: DbCL ensures that OSM can apply ODbL to the result of combining all the individual contributions. 1) I assume by OSM you mean OSMF. 2) The worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to do any act that is restricted by copyright over anything within the Contents, whether in the original medium or any other gives them that. 3) OSMF *doesn't* combine the individual contributions. They just provide the hardware which allows us to do so. Right. If its the case that OSMF doesn't have a database right in the contents of its database, then, logically, that right would be jointly owned by all contributors. The contributor terms don't (as yet) expressly contain any grant of database rights to OSMF, though you might decide that copyright in the terms is meant to cover similar rights, such as the sui generis database right. I'm not sure its entirely an open and shut case though. If I set up a website and encouraged and invited people to contribute to a database I put together on that site, it is not clear that couldn't count as collection of the items in the database, just because they were supplied by other people. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Would The ODbL and BY-SA Clash In A Database Extracted From a BY-SA Produced Work?
On 7 September 2010 16:51, Anthony o...@inbox.org wrote: Ah, I see there is a provision for this in the EU database right: In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly. Yes, that's what I was alluding to. If there were no OSMF and the project was being carried out by a group of interested individuals - as quite a few crowd-gathering of data projects are - then that might apply. Of course, if a joint database right works like joint copyright, it's fairly useless. Any joint owner of the database right would have full sub-licensable rights to the database, so long as they account for and share all their profits in using that right. All it takes is one joint owner to grant a free worldwide license to do anything, and the database right is effectively gone. H, that sounds wrong to me. Joint ownership of copyright does not work in that way at all. Either owner may prevent the other from (for example) copying their joint work. If one joint owner licences their work, it might well estop them from making any claim against licensees, but the other joint owners would not be bound by it. That's why joint copyright ownership is a ghastly thing and I try to dissuade clients from entering into joint ownership agreements unless there's a really good reason to do so. Regulation 16(1) of the Copyright and Rights in Databases Regulations 1997 works in a similar way. It states: 16. — (1) Subject to the provisions of this Part, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilises all or a substantial part of the contents of the database. Where consent of the owner means the joint consent of all owners. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 2 September 2010 02:25, Anthony o...@inbox.org wrote: On Wed, Sep 1, 2010 at 6:04 PM, Francis Davey fjm...@gmail.com wrote: maps are expressly treated as artistic works by s.4(2)(a) of the Copyright Designs and Patents Act 1988 (to give a UK perspective). Pretty much the same thing in the US. pictorial, graphic, and sculptural works are included as examples of copyrightable works, and maps are included under pictorial, graphic, and sculptural works. Yes - I didn't want to bore 8-), though there's a subtle difference in that the US statute originates in a constitutional provision permitting Congress to promote the progress of science, whereas the UK Parliament can pass whatever it likes (as also in Australia). I don't think that's relevant in this case, but it means that it is possible to inject more policy into a USian debate. Even in French law - where the fundamental object of protection is a work of the mind, the Code expressly includes geographical maps as works of the mind (L112-2). Well, not really. First of all, I'd say Mapnik tiles are clearly part of OSM, and I don't think there's any dispute that Mapnik tiles are maps. But furthermore, when it comes to the OSM database itself, I agree with Assistant County Attorney Lori Peterson Dando that a GIS database [is] essentially a computerized map and may be entitled to protection under copyright law, not only as a compilation, but as a 'pictorial' or 'graphic' work as well (see Open Records Law, GIS, and Copyright Protection: Life after Feist, https://www.urisa.org/files/Dandovol4no1-4.pdf). I'm inclined to agree, at least for the UK. Dando's analysis of course doesn't follow through (because we have no Feist) but I think UK authority bears a similar conclusion. I'd guess Australia was the same, but I don't have the same thorough knowledge of it. Well, in this case we were talking about the definition as used in CC-BY-SA 3.0. I'd certainly argue that maps, as used in that license, include GIS databases like the OSM database, and I'd use Ms. Peterson Dando's comment that a GIS database is essentially a computerized map as evidence. Ultimately, if it became a matter of dispute, and judge and/or jury would decide, and we can only make educated guesses about whether or not they'd agree. Oh, that seems highly likely. The problem with CC-BY-SA 3.0 is not whether a Work can include a map, nor even (in our view it seems) whether map in the licence include the OSM database, but whether or not CC-BY-SA 3.0 extends to works that are the subject of the sui generis right or not. It is not clear whether other applicable laws (in clause 2 say) would or would not include it, or even whether copyright would be construed to include protections like copyright. I think the express qualification of rights over database in the definition of Work would suggest not. If there's no copyright in the applicable law and CC-BY-SA 3.0 only covers copyright it doesn't matter whether GIS databases are included in maps as a matter of construction of Work since the licence wouldn't reach so far. But maybe you meant to imply all that and I wasn't reading carefully enough. If so, sorry. On the other hand, it might not matter, as I'd also argue that the OSM database is a copyrightable compilation. As to that, Ms. Peterson Dando says in the context of copyright law, GIS databases are compilations which may be copyrighted. That's something that is likely to vary more across the world I'm afraid. In particular some GIS databases might not get over the own intellectual creation hurdle. Finally, I want to be fair and point out that while (or even if) the OSM database is copyrightable, that doesn't mean the copyright on it extends very far. Again quoting Lori Peterson Dando, Even though a GIS database may be copyrightable as a compilation or a map, the protection afforded by copyright may be thin in light of the Feist and Mason decisions. Right. That's even more difficult because, as you know, the approach taken around the world to the way in which one assesses infringement is complicated. When US lawyers talk about thin protection they don't quite mean the same thing as we do and so on. To give a specific example, I'd say a routing database created from OSM data, suitable for running a shortest path algorithm and providing driving directions, would be completely public domain and non-copyrightable, in the US and in many other jurisdictions. Right, because it takes only the factual content and not the work. That seems plausible to me in so far as I understand the US authorities. And that, I'd say, is a flaw in CC-BY-SA. Because it means someone in a sui generis database rights jurisdiction could take OSM, make a routing database out of it, improve that routing database, and then sue people under database rights law for using those improvements. At least, under CC-BY-SA 3.0, I think they could. Yes, I think
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 1 September 2010 22:41, Anthony o...@inbox.org wrote: I'm not even sure what maps as images means. If a map is described in XML (say, as an svg file), would that file be a map as an image? Let's assume any of the individually copyrightable graphics (like http://wiki.openstreetmap.org/w/images/e/ef/Aeroway-helipad.png and http://wiki.openstreetmap.org/w/images/c/cd/Bierkrug32x32.png) were omitted or placed in a different file. Just the lines (dashed/dotted/etc), the filled areas (colors or patterns), and the text were included. Is OSM a project to make maps, or a project to collect factual data about the world? maps are expressly treated as artistic works by s.4(2)(a) of the Copyright Designs and Patents Act 1988 (to give a UK perspective). Whether some or all of the OSM is a map is another question - which I guess is the one you are asking. The point being that image is not a UK copyright category, the main category is artistic work of which a graphic work is a subcategory one member of which is a map. Section 10 of the (Australian) Copyright Act 1968 does the same job (where the categories are artistic work/drawing which includes map). The Australians inherit their copyright law from the same source as we do in the UK and there is still considerable cross-fertilisation of ideas (the High Court of Australia being particularly respected here). I could go on but it would bore. I just wanted to make the point that images isn't a category much used in copyright definitions, unless referring to photographs/films and so on where the image is a recording of light - which a map isn't except indirectly. There's a conflict of authority in the UK over whether a work can belong to several categories at once. I don't mean whether a work can have elements that could be more than one class of work (like pictures in a book) but where the same creative content is both. For example a circuit diagram has been held to be a literary work (because it is written in the language of an electrical engineer) but also an artistic work at the same time. So, maybe something can be a map, a copyrightable database and a (sui generis right) database at the same time. Who knows. Sorry, its late and I am meandering a bit. The short point is: none of this is even slightly unproblematic. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 1 September 2010 14:42, Robert Kaiser ka...@kairo.at wrote: Francis Davey schrieb: Agreeing with the person you assign to that they will only use the copyright in certain ways won't protect you against a subsequent assignee of the copyright (eg OSMF assigns to XXX Ltd), subject to certain exceptions. While that may be true, anyone not trusting the organization that operates all of the software and hardware of the project (the OSMF in our case) should not have contributed any data to the project as a whole in the first place. That's a different point I think. All I was trying to clarify was the effect any contractual tying of OSMF's hands might have. Bear in mind that OSMF may cease to exist and its assets be transferred to someone else who you may trust less. I'm not saying it will happen or is even likely to happen, but I'm afraid as a lawyer I'm inclined to be cautious about the far future. Copyright (which is one of the rights in issue) can last a very long time and much can change over that period. I'm not expressing a view about the rights and wrongs of anything though. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 31 August 2010 16:00, Robert Kaiser ka...@kairo.at wrote: No, but it is signing a paper that states exactly which information (all your OSM data? all your GNU code?) is handed over to a specific entity (the OSMF? the FSF?) in terms of copyright entirely and it's up to that entity to license it as they please - possible with certain restrictions (like always making it available with a free and open license, as the CT states). If you don't care about what someone does with your copyright work, then you can certainly assign the copyright (or database right or whatever) to that someone without a great deal of difficulty. You can also assign some or all of what you have created (or in many jurisdictions and with some more careful restrictions, what you will create). If you want to restrict what the person you assign to does with the copyright, then either you want to avoid assigning and retain ownership - a suitably drafted exclusive licence could have that effect in England and Wales, or you want Isome kind of reversion on condition subsequent could also work, though it would be more complicated. Agreeing with the person you assign to that they will only use the copyright in certain ways won't protect you against a subsequent assignee of the copyright (eg OSMF assigns to XXX Ltd), subject to certain exceptions. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] Community vs. Licensing
On 31 August 2010 12:25, Grant Slater openstreet...@firefishy.com wrote: Yes, this is the intent of the section 3 of the Contributor Terms. It allows a mechanism for the community to adopt a new license in the future. It is the main point of contension with some of the imported dataset. Might be worth sharpening section 3 to make it clear that the members may from time to time designate an alternative licence or licences (at the moment it reads as if the selection will and may only be made once). Also it screams to be formatted with bullet points or something, but that's a pure niggle of style. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 29 August 2010 23:41, Eric Jarvies e...@csl.com.mx wrote: Eric Jarvies Sent from my iPad On Aug 29, 2010, at 3:10 AM, jamesmikedup...@googlemail.com jamesmikedup...@googlemail.com wrote: unless the work is copyrighted or copylefted as well. What right does Y have to the data to begin with? under copyright law, he has no rights. Let me try to clarify what I am saying: Whether or not someone contributing data to OSM has any IP rights in that data, or whether the OSMF (or anyone else) can exercise any rights over data that has been included in OSM or indeed the whole of OSM, depends on (i) jurisdictional questions and (ii) the nature and quality of the data. There are relatively complicated questions of copyright law at work. The fact that the courts have been deciding questions on copyright in compilations/databases illustrates this. But that's not important for what I'm saying. If OSMF can us IP rights to stop people using part or all of OSM in any particular jurisdiction then you don't need any additional protection (you already have it). In my example Y could be restrained by injunction or otherwise pressed to stop. As I understand it the desire of the new licence scheme is to supplement IP protection by using a contractual mechanism. It answers the questions: what do we do about jurisdictions where there is no protection? Some places are generous about copyright (England for example has a really low threshold of originality in general, and so before the database directive was about as generous as they come) but others are not. Some places have a specific database right (like the EU) but most don't. So one of the points that seems to be in issue is whether there needs to be a contract style protection or not. People seem to be asking do we need this?. My point - in answer to someone who suggested it might just be an implementation detail - is to try to explain that it isn't. The contract bit of the new licence won't protect you in the same way as copyright law + licensing does. It has no automatic way of applying sanctions to third parties like Y in my example. Sure *if* Y can be stopped another way, then great, but the contractual element is not needed. I'm not arguing that using contractual protection is wrong or ineffective. My vague impression is that lawyers were asked to come up with something to fill the gap left by the lack of legal protection for databases in some places, and this is what they came up with. I suspect that it is pretty much the best you can do. And its not quite as bad as all that. If Y and X collude to get the data out, the fact that Y is not a contracting party may not help them. Most jurisdictions have protections against that sort of thing (eg as conspiracy or tortious inducement of breach of contract in English law) but mileage varies even more as you might imagine and it makes things more difficult. The USB drive example is a good one because X and Y would not be connected (though of course Y would probably be a thief, or at least a tortfeasor of some kind, in taking the stick). I have a deep academic and professional interest in the copyright and other legal questions raised by what you are doing, which is why I read and occasionally contribute to discussions on this list. I'm not myself a mapper and so have no right to try to influence what you do. I hope no-one objects to my occasional comments. All I am trying to do is inject some legal clarity as much as I can. Of course its generally not a good thing to be doing legally interesting things, but take heart from the fact that people have been litigating copyright in maps one way or the other for centuries. There's an early 19th century case in which our Lord Chancellor was surprised that you could copyright a map (after all - its just factual information about the world where's the originality in that?) but conceded that the weight of authority was that you could. When I was preparing a talk on copyright in images I wanted to illustrate it with a map of the area in question and of course OSM so thanks for that. Y has everything to do with the data, in the context explained above. The point is; it is already difficult(and expensive, time consuming) to defend rights on said data, it will become even moreso. A slightly sharper way of putting it is that using the additional protections given by contract may add complexity to any legal action you take. In practice its usually nice to have more causes of action to plead, if done well it can put the frighteners on the defendant. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons
On 29 August 2010 00:40, Nic Roets nro...@gmail.com wrote: Mike, my understanding (and I think Grant will agree) is that copyleft is an idea: I publish something in such a way that coerce others into sharing their work with me. The implementation details of that idea (copyright law, contract law, unenforceable moral clauses etc) is left to the lawyers and the managers. Just a point of information (I don't have a view on what the right thing to do is concerning re-licensing nor should I): there is a fundamental difference between licensing a property right (such as copyright) and contract, and that is that the contract will only protect you against a breach by the immediate end user. As follows: if X uses your data under a contract with you that requires use in a particular way (eg to mimic something like the GPL) and X, in breach of that agreement, passes data to Y then barring certain special circumstances (such as X and Y colluding) it will be virtually impossible to prevent Y from using the data in any way they please. In the context of the web, Y scraping X's data where X has failed to require that not happen would probably be sufficient and not an unlikely circumstance at all. Of course if there's an IP right as well Y might be breaching that, but then you wouldn't need to use the contract, only a licence. Contract doesn't get you what IP licensing will get you, but that maybe the best you can do. Don't imagine that its just an implementation detail. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are the Contributor Terms Irrevocable?
On 23 August 2010 23:30, 80n 80n...@gmail.com wrote: What then is the purpose of including the word irrevocable in the list of rights granted? Does it have any meaning, or is it just window dressing? As a default general rule a licence may be revoked by a licensor unless there is something preventing them from doing so (such as an agreement to the contrary). -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Are the Contributor Terms Irrevocable?
On 23 August 2010 19:58, 80n 80n...@gmail.com wrote: I'm curious about the meaning of the word irrevocable in the contributor terms. Having examined a number of licenses that grant a similar range of rights (worldwide, royalty-free, non-exclusive, perpetual) none of them include irrevocability. They also all contain a termination section that is usually engineered to allow termination in the event of a breach. Am I right in thinking that if OSMF committed a material breach of the CTs then contributors would not be able to revoke their grant of rights? Does the common law right to repudiate trump the inclusion of an irrevocability clause? I assume you mean fundamental breach since a material breach of contract may not be sufficiently serious to permit the other party to repudiate it. Off the top of my head I don't know any specific law on the subject, but if OSMF's conduct struck at the very root of the contract (i.e. it was a fundamental or repudiatory breach) then I cannot see any reason why the contractual element of the CT should not be revocable. I'm less sure about the licence element. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Contributor Terms - The Early Years
On 23 August 2010 01:34, Richard Weait rich...@weait.com wrote: That's an open question for the lawyer that wrote the CT. In casual conversation with one lawyer (casual as in I wasn't paying the lawyer) I was told that legal-English is not FORTRAN and the or is not required for legal-English syntax. This one lawyer does not trump the OSMF lawyer, this is just one data point. Perhaps any lawyers on this list would comment on this matter in general? Well, the at common law (and therefore probably in every current common law jurisdiction I know of and probably even the US) the interpretation of contracts is a mixed question of fact and law (if there were a jury, the judge would tell them the rules of interpretation, the jury would apply them). In practice this means that aside from questions such as what background material is available for the interpretation exercise (eg the draft version), deciding what a contract means is not really a legal question, its a factual one. It would thus depend on who wrote it, what it was for and so on. This is lengthy way of saying that a lawyer may not be in a much better position than you in determining what a contract means, and also that there are no necessarily any special or magic words that mean particular things in a contract. The test in English law (again probably a common law generality) is to look at what an objective observer reading the contract at the time it was made would assume that the parties meant by it. Thus English law does not work like FORTRAN it is rather more forgiving (though those with long memories will recall that FORTRAN did used to try to assist by inferring information - when I worked as a duty programming advisor I would require that programmers wrote IMPLICIT NONE at the start of their programs to introduce some kind of sanity). So CT 1.0 is certainly a head scratcher. I can easily see a judge puzzling over what was intended by the internal contradiction between sentence 1 (which requires that a contributor be a copyright holders whatever they are) and the last sentence which only applies to someone who is not a copyright holder. I think (and this is not a formal legal opinion - sorry) that a court is most likely to decide that what is intended is to permit non copyright holders to contribute provided they have permission of the copyright holder to do so. Quite how the second sentence of 1.0 factors in is unclear - if the job its trying to do is to filter out copyright holders who are for some reason (perhaps because of a binding contract or some rule of law) unable to give the permission without violation of some law then the last sentence doesn't do that job - it requires that the contributor have permission of a copyright holder but doesn't seem to require that that holder be able to grant that permission lawfully. To Anthony's question I'd say the answer was probably, yes despite those objections. So it is very oddly drafted and its not immediately clear what it is trying to do precisely, which makes interpretation difficult for a court. Now on the specific question: may a non-copyright holder contribute under the terms? As I have said a court is likely to conclude that they may. This is fortified by various rules of law, in particular contra proferentem - as the authors and profferors of the contract, OSMF are assumed to know what they are doing and any ambiguity would be resolved against them and in favour of a contributor. This is what (I think) is meant by another poster to this thread talking about a contract of adhesion - though in English law that sort of doctrine relates particularly to unfair terms and consumers rather than as a generality. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Size of NearMap Contribution
On 20 August 2010 09:21, Frederik Ramm frede...@remote.org wrote: So you *need* CT in which the contributor basically signs over his data to OSMF who then make a database from it. Has anyone given much thought to how this works for the sui generis database right of the European Union? In other words, *does* the free contribution of multiple items of data, not in themselves substantial enough to form a database, give the person to whom they are contributed (whatever that might mean) a database right in the sum? I am wondering (as others have wondered) where the substantial investment is? Sorry if this is the wrong place to ask the question. I realise that you all have a team of lawyers who do/have thought about all this and that is inherent in the ODBL but I am just curious. It isn't obvious to me that this is simple. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] decision removing data
On 6 August 2010 19:42, 80n 80n...@gmail.com wrote: What's the criteria in the EU? Do you know? own intellectual creation Article 3(1) of 96/9/EC: 1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection. I was actually asking about the criteria for traditional copyright not database rights. However the reference above is interesting in that it That is the criterion for traditional copyright and not database rights. The Database Directive actually did two things: (1) it harmonised the threshold criterion for *copyright* in databases (see above) (2) it created a new database right, the threshold for which you will find in article 7(1): 1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database. In other words there has to be substantial investment in one of: (i) obtaining; (ii) verification or (iii) presentation, where that substantial investment could be quantitative or qualitative. asserts that selection and arrangement is required to earn a database right. Is that a correct interpretation of what that says? Would a dump of a list of facts with no selection or arrangement (for example a list of names of all elected Members of Parliament) be protected by database rights? It *could* do, but whether it did or not would depend on whether there had been the relevant substantial investment. In other words you cannot ask of a database whether or not it could be the subject of the database right, without also knowing something more about how it was created. If the UK Parliament tried to assert a database right over its list of MPs then such a claim might well fail (since it has that list anyway) whereas a carefully checked list generated by someone else (eg by My Society) might be different. The Fixtures Marketing cases being particularly relevant: http://www.out-law.com/page-5055 -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] decision removing data
On 5 August 2010 22:26, 80n 80n...@gmail.com wrote: Francis Indeed. Let's start getting specific. The threshold in the US is very low - which incidentally is where this you can't copyright facts stuff originated. I may have missed that part of the discussion. If you mean that the US is where the question first arose, then the US is certainly not the only place where this argument has arisen - it was a hot topic in English copyright law in the 19th (and to some extent in the 18th) century. But if you mean that it was the jurisdiction people had in mind when drafting the OdbL then that may well be right (I have no idea bout the history). What's the criteria in the EU? Do you know? own intellectual creation Article 3(1) of 96/9/EC: 1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection. Exactly what this means in practice is certainly a present hot topic. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] License Cut-over and critical mass
On 16 July 2010 17:11, Rob Myers r...@robmyers.org wrote: Science Commons seem to think copyright doesn't apply to databases, OKFN seem to think it might. I'm erring on the side of caution. If you can provide any clearer guidance I'd be very grateful. :-) You might want to read the Supreme Court decision in Feist and subsequent cases: http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service is a wikipedia summary (though you should read the case law if you want to really understand the issues involved). The key point is that merely having invested a lot of effort in collecting information is not sufficient on its own to make that information subject to copyright. How this would fit in with OSM would depend a great deal on what it was that you were protecting. In the EU/EEA copyright certainly does attach to a database as a result of the database directive (96/9/EC): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31996L0009:EN:HTML But there is quite a high threshold for protection since there is a requirement that databases so protected by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation. There is some recent litigation in the English High Court as to whether football fixtures lists are subject to database copyright. In the EU/EEA we also have a database right which is different (a form of IP in databases separate from copyright) which is more closely linked to the amount of work/investment in a database, but it is not entirely straightforward. For example football fixtures lists aren't so protected (because the leagues are creating them anyway as a part of running a football league). In Australia, there was an important decision last year in the High Court involving TV schedules: http://www.copyright.org.au/news/news_items/cases-news/2009-cases/u29768/ Its quite subtle but it represents (in my view) a rejection that mere investment or effort in creating a collection of information is enough to give copyright protection, which would make mere data not protectable. Sorry to but in (as an outsider) with my legal half-pennyworth but I hope it is some help. As a copyright lawyer this is all very fascinating intellectually, but extremely difficult when it comes to advising clients. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] License Cut-over and critical mass
On 16 July 2010 17:55, Anthony o...@inbox.org wrote: On Fri, Jul 16, 2010 at 12:44 PM, Francis Davey fjm...@gmail.com wrote: But there is quite a high threshold for protection since there is a requirement that databases so protected by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation. At the very least, doesn't the categorization of roads into motorway/trunk/primary/secondary/etc constitute arrangement of the contents? I find it hard to believe there's *absolutely no originality* in OSM. There's a little bit, even if it is the less interesting (to me) parts. Well, of course it depends on what part of the OSM one is talking about (that is what is taken), as you say some of it does very much seem to fit the criteria. There hasn't been very much litigation on database copyright (actually not all that much on database right either, though there has been some) so its boundaries are as yet not entirely clear. Because it is a point of harmonisation across European law one cannot simply assume that it will be much like originality criteria extant in (say) English common law - historically England has tended to set the lowest threshold for copyright of any jurisdiction with which I am familiar. I'd guess you were right, but that's about as far as I can go. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Contributor Terms draft changes
On 14 February 2010 19:33, Mike Collinson m...@ayeltd.biz wrote: We are wanting to introduce dual-licensing for *new* registrants as soon as we have the new Contributor Terms nailed down. That means a final review of the current wording by legal counsel and then I'll ask for any last(?) comments from this list. Good stuff. I've not give it a thorough reading, but thought you might be interested in a couple of comments (I realise you have counsel to do this, but since I am also a copyright lawyer, my half-pennyworth might be of some interest). [1] as part of a database only under the terms of one of the following licenses... has two parsings: only may modify database or the following phrase. I.e. you might mean (a) that when you sub-license it will only be as part of a database and only under one of the licences given, or (b) that when you sub-license it as part of a database (but not when you otherwise sub-license it) that sub-licensing will only be on one of the following terms I hate ambiguity in a contract or licence and usage (a) is the less usual of the two ways in which only is used as a modifier in English. [snip] 1) License violations - can someone sue on the basis of misuse of their data? Our understanding from Counsel is: Yes. OSMF can on the basis of collective/database rights. An individual contributor can if it concerns data that they added. Board suggested that we deal with this via Community Guidelines ... for example, asking contributors to be courteous; setting up how and when the OSMF would expected to act; name and shame where possible; etc. We have therefore made no addition to the Contributor Terms, it is already long. OK. That's clear. At the moment you probably cannot take advantage of section 101A of the Copyright Designs and Patents Act 1988 which allows a licensee to sue in certain circumstances. Are you quite clear that the advantage of short contributor terms outweighs the flexibility of being able to sue for violation of copyright (rather than database right)? The sort of change I envisage would be to insert after These rights include, without limitation, the right to sublicense the work through multiple tiers of sublicensees the phrase and to sue for any copyright violation directly connected with OSMF's rights under these terms. Something like that. [snip] 3) and a tiny plain language change to make it more obvious that an active contributor is a person not a bot by using the word who. Why not put it beyond doubt by replacing contributor with natural person, so that you have: a natural person (whether using a single or multiple accounts) who Since you never defined contributor having the term there doesn't add very much. Lastly, I am sure this has come up on the list before, so forgive me as a newcomer not knowing the thinking on it, but if this is a contract/licence governed by English law, then wouldn't it be sensible to use the spelling used in the courts of the jurisdiction, i.e. British English? I have in mind all those uses of license for licence. I'm happy to go through and make the changes if it would help 8-). Good work on this. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Copyright Assignment and ability to sue
2010/1/12 Ed Avis e...@waniasset.com: That is an interesting point. If map data is covered by copyright, then without copyright assignment the ability of the OSMF to enforce share-alike is weakened. As I've observed OSMF cannot enforce share-alike under the existing contributor terms because everyone in the world is granted a non-exclusive licence. An assignment of copyright (to OSMF) would not affect that. Second, in the UK at least - I cannot really speak for other jurisdictions - if the CT were slightly rewritten so as to expressly grant the OSMF a right to sue as a non-exclusive licensee then s.101A of the Copyright Designs and Patents Act 1988 would give OSMF that right (provided that the agreement is signed, which should be easily possibly by supply of name of contributor and a button indicating that the assignment is effectively signed) at least as far as enforcing share-alike goes. You could also grant an exclusive licence with grant back of a licence for the contributor on whatever terms. On the other hand, if map data is not covered by copyright, then the assignment of copyright licence to the OSMF is not necessary. Either way, having a blanket grant-of-licence in the contributor terms without actually assigning the copyright seems a suboptimal choice. Not necessarily. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Copyright Assignment
2010/1/4 Anthony o...@inbox.org: Hence not copyright assignment, but basically the same thing. You give up the right to sue, and the OSMF gets the right to sue. I hope its OK if I butt in here. I'm not a proper OSMF person, just an interested lawyer who reads your list. However I think your understanding of the Contributor Terms is wrong. Here I confess that I am not quite sure what we are talking about, since no-one has posted a link. I am assuming that we are all working from: http://www.osmfoundation.org/wiki/License/Contributor_Terms Now *that* is very much not an assignment of copyright. The difference (and the reason why its not basically the same thing) is if you assigned copyright in your contribution, OSMF would be able to sue someone for violating that copyright. The Contributor Terms do not give them that right. What the Contributor Terms do is (i) give OSMF the usual royalty-free, non-exclusive, perpetual, irrevocable licence with a right to sub-licence; and (ii) grants the same licence to anyone that receives Your Contribution. (i) is relatively normal (which isn't to say its the right thing to do or doesn't have its problems). Its the kind of thing you see on google for instance and its the kind of clause I'd use as a starting point (perhaps for negotiation) when designing TC's for a crowd-sourcing site (which is something I do from time to time). It means the licensee can get on and use the content without worrying too much about it. (ii) is a bit odd - its effect appears to be to nullify any copyright in Your Contribution since anyone who copies it is surely someone who receives it. It would appear to prevent anyone suing for breach of copyright. But nothing gives OSMF a right to sue for any copyright in anything you contribute. If you had a database right in it, then OSMF are in difficulty (I'm not sure why its drafted like that - but there's probably a good reason). What OSMF _may_ get is a database right in all the bits of contribution that they get from contributors. I say _may_ because database right is not a straightforward. Its quite possible they won't have such a right, but that's another question. Database right is infringed in different ways from copyright, but if OSMF get such a right and it is infringed then they can sue, but that's because its their right, not because you assigned a right to them. Or, as Michael Meeks said: Various other methods are used to achieve the same effect [as copyright assignment]. Some common ones - are asking for a very liberal license: BSD-new, MIT/X11, or even Public Domain on the contribution, and then including it into the existing, more restrictively licensed work. The Contributor Terms appear to be just that, a very liberal licence. If some corporation makes a large donation to OSMF, and OSMF decides not to sue them for something that I consider to be unacceptable use of data I have contributed, there's nothing I can do. I've given them (and everyone else Absolutely right, although OSMF might not be able to sue either. You can't sue. in the world) a perpetual, irrevocable license to do anything. In the mean time, if that corporation wants to sue *me*, for using its data plus some copyrightable improvements, it's free to do so. I can't even counter-sue as a defense. That's right. If you give away something you can't complain how other people use it. That's completely unacceptable to me. YMMV. What would be acceptable? It looks to me like the intention of the Contributor Terms is much nearer to what you want because clause 3 restricts what kinds of things OSMF is allowed to do when it sub-licenses your data to other organisations. In particular OSMF would not be able to sublicence to %evil_organisation unless it was covered by one of the open source licenses listed (or one selected by members - which would have to be free and open) which would probably prevent them suing you. But of course as it stands that organisation doesn't need OSMF's licence for your data, since you have already given that to everyone. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] OS map copyright expiry dates, FOI request
I doubt its binding. Strictly speaking FOI requests are for information not opinions, but its something no-one seems to pay much attention to. There might be an estoppel/legitimate expectation argument but I doubt it. This is off the top of my head of course. Francis 2009/9/14 TimSC mapp...@sheerman-chase.org.uk To legal-talk, I was trying to think of a way to clarify the situation on copyright expiry of OS maps. One interpretation is the 50 years copyright starts when the map was last updated. Another is the copyright clock starts on the year of the copyright notice. To get an answer, what better way than to ask ordinance survey themselves? Under the freedom of information, I asked about a specific example (detailed below). The response seems to indicate OS's view is the copyright expires 50 after the year of the copyright notice. This is good news as it makes many maps available for our use. The next question that occurs is can OS reverse their view or is an FOI binding in some way. (Note the disclaimer of the email.) Any thoughts from the community on this would be good... If my question or their answer was ambiguous, we can always do another FOI request. Regards, TimSC -Original Message- From: Customer Services Sent: 14 September 2009 12:05 To: Tim Sheerman-Chase Subject: RE: Freedom of Information. Reference: SAP 71979 Dear Mr Sheerman-Chase Ordnance Survey reference: 71979 Thank you for your email dated 30 August 2009 requesting: I have a sheet that has the following markings: Made and published by the Director General of the OS, Chessington, Surrey 1960 Reprinted with minor changes 1965 Crown copyright (C) 1960 Which date is used to calculate when the copyright will lapse? Would this either be either 1st Jan 2011 or 1st Jan 2016 or another date? We are pleased to provide you with the following information with regard to your request: The Crown copyright subsisting in a hard copy printed OS map will subsist from the end of the calendar year in which it was published until the end of the period of 50 years from the end of the calendar year in which it was published, meaning 1 January 2011. Please note that your enquiry has been processed to Freedom of Information guidelines. As all requested information has been provided, we have determined that in all the circumstances of this case the Public interest consideration (section 17 FOIA) is not applicable in this instance. If you are unhappy with our response, you may raise an appeal to our Appeals Officer at: Complaints Team Customer Service Centre Ordnance Survey Romsey Road SOUTHAMPTON SO16 4GU Please include the reference number above. The Appeals Officer will ensure that the process has been followed correctly, questioning any decisions taken regarding the original response and recommending disclosure of additional information if appropriate. Thank you for your enquiry. Yours sincerely Tony Gray Freedom of Information Pracitioner Ordnance Survey Romsey Road, SOUTHAMPTON, United Kingdom, SO16 4GU Phone: +44 (0) 8456 050505 | Fax: +44 (0) 23 8079 2615 www.ordnancesurvey.co.uk | customerservi...@ordnancesurvey.co.uk Please consider your environmental responsibility before printing this email. -Original Message- From: Tim Sheerman-Chase [mailto:**] Sent: 30 August 2009 19:10 To: Customer Services Subject: Freedom of Information. Reference: SAP 71979 FOI Enquiries, I have a question under the Freedom of Information Act 2000 regarding the crown copyright of OS map sheets. I have a sheet that has the following markings: Made and published by the Director General of the OS, Chessington, Surrey 1960 Reprinted with minor changes 1965 Crown copyright (C) 1960 Which date is used to calculate when the copyright will lapse? Would this either be either 1st Jan 2011 or 1st Jan 2016 or another date? Thanks, Tim Sheerman-Chase This email is only intended for the person to whom it is addressed and may contain confidential information. If you have received this email in error, please notify the sender and delete this email which must not be copied, distributed or disclosed to any other person. Unless stated otherwise, the contents of this email are personal to the writer and do not represent the official view of Ordnance Survey. Nor can any contract be formed on Ordnance Survey's behalf via email. We reserve the right to monitor emails and attachments without prior notice. Thank you for your cooperation. Ordnance Survey Romsey Road Southampton SO16 4GU Tel: 08456 050505 http://www.ordnancesurvey.co.uk ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk -- Francis Davey ___ legal-talk mailing list legal-talk
Re: [OSM-legal-talk] Contributor Terms
2009/7/3 Ed Avis e...@waniasset.com: My point is that granting powers to relicense the data is basically equivalent to copyright assignment (plus certain conditions, as happens when you assign copyright to the FSF, they promise to keep to a free licence in the future), but it is better to call a spade a spade. Technically (at least in English law), no. Its a sublicence rather than an assignmentt. They are distinct. Many jurisdictions impose formality conditions on assignments of copyright that they do not on licences. In a licensing situation the licensor retains their ownership of the copyright, contrast the assignment situation. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Privacy and Terms
2009/7/4 Matt Amos zerebub...@gmail.com: i'll suggest that to our lawyer, but this might mean having more than two sets - apparently Canada and Australia have their own versions of COPPA. and i guess the EU has something similar. it may end requiring us to to have a different set of TsCs for each jurisdiction. From having a read through COPPA it seems that it would not apply to someone merely looking at or using the map - unless personal information is somehow harvested in the process which seems unlikely - but it might apply to a situation where children signed up. This illustrates a wider point: if people are going through a sign-up process then at that stage its entirely reasonable to ask them to agree to a set of terms and conditions (which can be as simple as don't be an idiot). Many sites do that and do that in a lightweight and inoffensive way. After all if you want to join in you should probably told what the local culture is like. On the other hand terms and conditions for use of the *site* (as opposed to signing up for an account) would not (as far as a 1 minute skim read suggests) require any compliance with COPPA. For my part I cannot see any obvious need for a whole-site-applies-to-everyone-even-those-without-accounts terms and conditions. But - and I boringly restate this point because I'm not sure its been necessarily understood - it depends what you are trying to do. There's no legal right or wrong it all depends on what you want to do. My guess is that you don't need TC's of the kind outlined but I could be wrong. Though I do draft and litigate contracts for a living I only do so in England and Wales. I have a nodding acquaintance with some relevant law in other jurisdictions, but if you are particularly concerned about getting things right world-wide you might want a team effort 8-). -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Privacy and Terms
2009/7/3 Russ Nelson r...@cloudmade.com: Indeed. Consider what you would say if a lawyer looked at a program and said Why do we need all this codese? Speaking as a lawyer - albeit one who hasn't been on this list nearly long enough to have an opinion, I'm mostly just trying to learn where OSM are coming from - my reaction to the terms of use is yuk. I'm not sure this it the place to discuss it and whether my views are at all interesting, but I do draft (and more often litigate) contracts like this. Main problem (as I see it) is that its drafted from a US point of view, but purports to be governed by English law. I'm not quite sure how that will work out in practice or what the goal is. Is it clear that OSM is only used in the US and England? If not, why is (only) US law being mentioned when many different legal systems will come into play? If English law is the governing law, then that, surely is the one to go with, subject to having an eye to all other relevant jurisdictions. I work a lot with clients who want to be reasonably legal safe but want contracts to be short and simple and are prepared to take the risk that I haven't put in an extra 30 pages of boilerplate to cover an obscure risk, so that kind of drafting is entirely possible. But its a matter entirely for the client. I'd be happy to write/rewrite this kind of thing for you or give my input, but, as I said, I'm an OSM novice and really don't know what you are after. From an English law point of view, all caps paragraphs should be removed of course 8-). There's a bunch of stuff I'd rewrite, but its not up to me. All the best. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Privacy and Terms
2009/7/3 Ed Avis e...@waniasset.com: Yes, which is why a contributor agreement is needed - but that does not mean you need a set of terms and conditions just to *read* the site. Yes and as is I hope clear from what I have written (although your use of the word but suggests possibly not) I do not believe you do. I am trying (though unsuccessfully) to make helpful remarks, but they don't seem to be being helpful. I think if it's necessary to undertake a complex contractual obligation just to look at some map data, then it is no longer free map data. But if we assume That is, as I understand it, what the new data licence does attempt to achieve - but I could have misunderstood this. that the goal of OSM is now 'provide legally encumbered map data under EULA' for the sake of this discussion... There's a difference between that and a pure copyright licence since you don't have a right to use copyrighted material without a licence (or some exception holding) so I didn't know the terms of the licence won't help someone who wants to steal the data, whereas if you want someone to be bound by a contract you have to bring its terms to their attention. Yes, and they have to agree to it (just seeing it on a web page is not enough), Sure, its a necessary but not sufficient condition. and although IANAL, I think there must be some consideration, for example a monetary payment. It's not clear that putting up an intimidating screenful There has to be consideration, but if I say to you - if you want to use my data you must agree to abide by these contractual terms - then there will be consideration: you get the use of the data, and I get whatever I get out of the terms and conditions (eg you agreement to do or not to do certain things). Contracts very rarely fail for want of consideration. NB: this is all in English law terms, other systems of contract law work differently. of legal boilerplate accomplishes anything. Oh yes it does: it can annoy and intimidate people. It is what some people want to do. Not, I suspect, what OSM wants to do which is why (amongst other things) you shouldn't use ALL CAPS paragraphs unless you want people to feel shouted at. What I think you mean is that OSM shouldn't use the suggested terms of use (I assume that's the screenful of legal boilerplate), I probably agree (that's why I said yuk earlier in the discussion) but the starting point is not the terms of use, its what are you trying to do with terms of use? What risks are you trying to avoid and/or what advantages are you hoping to achieve? Once you have that thought through, then its pointful to look at whether you need any form of legal wording on your site and, if so, what it should be. There's a lot more to such things than merely trying to bind visitors to a contract. For example if you process personal data then as a matter of good practice you should have a clear explanation of what you are going to do with it (and as a matter of law in the EU you should inform the data subjects you are doing so). I suspect OSM does need such a thing. A statement can amount to a warning or disclaimer that does not create contractual relations but puts the recipient on sufficient notice to be aware that there are dangers or risks in using a site in a certain way and so as to limit the site owner's liability - I cannot see any need for such a thing with OSM. Anyway, the tone of responses seems to be that lawyers aren't really welcome here, so I'll shut up again. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Privacy and Terms
2009/7/3 Ed Avis e...@waniasset.com: Hmm, I think I would argue that 'use of the data' is no consideration at all since I would have been able to use it anyway even without agreeing to the terms. For example if I publish a copy of the King James Bible with a 'contract' at the front, and the consideration for this contract is being allowed to copy the text, clearly this isn't a valid contract since the supposed consideration is really nothing at all - the text is in the public domain anyway. Actually its Crown Copyright, but its unusual to see people bothering to obtain licences for it (though years ago we did make the effort to get a licence for an online version with no difficulty). So, there's an interesting point here which is that, you could, in principle, only sell to people who agreed not to copy it. They would be bound by that agreement, though their successors in title and third parties would not be. Having such a contract in the front of the book is more difficult because its harder to see how and why a purchaser of the book would be bound by it, unless they had had its terms drawn to their attention before purchase. This is the classic shrinkwrap question as someone else remarked. Legal publishers do this by the way. I have several books which have more or less ludicrous attempts to prevent my exercising my dominion over books I have bought. Just because you say it, doesn't make it binding, not because of want of consideration but because its not incorporated into the contract. The worst example I have ever seen was in a youth hostel in Pembrokeshire. In the kitchen was a notice which said that the YHA and its employees were not liable for any personal injury or death whether caused by their negligence or otherwise. There is so much wrong about such a statement I wouldn't know where to begin. Some website TC's try to do the same kind of thing. Therefore, granting permission on the data can only be a real consideration when there is some pre-existing law which means the other party needs such permission. That can be copyright law, database right or whatever. Sure. That's exactly right. But that assumes that the other contracting party has the data already. Having a contract that only permits you to download it from my site (or whatever) will have consideration because I don't have to let you do that (although there's a bunch of unresolved legal issues with the internet there too). But in such cases, I would suggest, a contractual agreement is not necessary anyway. The copyright holder can sue me for making copies of a book whether or not I agreed to that when I bought it. If you don't have a licence for the necessary copyright or database rights then you are not allowed to distribute the data. There is no need for any contract. Yes, that's right too. You don't need to obtain a contract to enforce rights you already have. That is why I think that imposing an EULA or terms and conditions on people is unnecessary and ineffective. Either the database right exists or it doesn't; if it does then no contract is needed to enforce it; and if it doesn't then no contract has been agreed to because there is no consideration. The idea behind the ODbL is, as I understand it, precisely to try to impose wider controls than would be possible by merely using intellectual property law. As a lawyer does that make any sense, or is there some flaw in the above? Apart from the small matter of consideration, no. Contracts very rarely fail for want of consideration. I wonder how much case law there is for 'contracts' which are some text displayed on a website, which has not had any scope for negotiation, and where the supposed consideration is granting you 'permission' for something you most likely had the right to do anyway... I doubt many such cases get to court. In respect of text on websites: In the UK I suspect there are more than you think, but they tend to happen at the rather knock-about stage in the county court and so they don't get reported and we don't hear about them. in the US there are *lots* and *lots* of them reported. But you are mixing up more than one issue. The lack of negotiation and standard form is a wholly different question. Such a contract (a contract of adhesion as my US colleagues would call it) may well bring in other legal considerations. Yes, quite... so far 'good practice' has been the reason given, which doesn't really satisfy me and others that the benefits outweigh the costs. OK. As I said, google maps don't have a TC imposed before use - what would be useful is to identify what exactly are the problems that one is seeking to deal with before going straight to code. Anyway, the tone of responses seems to be that lawyers aren't really welcome here, so I'll shut up again. I am sorry about the tone of my previous message - I would like to hear more of your thoughts. Thanks. -- Francis Davey
Re: [OSM-legal-talk] Contributor Terms
2009/7/3 Ed Avis e...@waniasset.com: Matt Amos zerebub...@... writes: Should say: You agree to only add contents for which you are the copyright holder, *or which are in the public domain*, *or which already have permission from the rights holder to distribute under Licence X*, or where you have explicit permission from the rights holder to submit the content. Why not something like You agree only to add contents which may be lawfully distributed under [ ] licence or something like that. -- Francis Davey ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] signup notice
2009/6/1 Russ Nelson r...@cloudmade.com: Note the (non-exclusively). That says that any data you give to OpenStreetMap.org must be licensed under the CC-By-SA. You're free to license any of it to the rest of the world under any license you want. Either I'm misunderstanding you, or you have the original concern wrong. The agreement is: By creating an account, you agree that all work uploaded to openstreetmap.org and all data created by use of any tools which connect to openstreetmap.org is to be (non-exclusively) licensed under this Creative Commons license (by-sa). Which means that you must license all data created using CC-BY-SA. There is no limitation on this, eg that the licence refers only to a specific licence for OSM's use. The clear meaning is that while you may licence the data any way you like, you must also licence it CC-BY-SA. In practice this means that you cannot licence it more restrictively than CC-BY-SA to the rest of the world. Your reading of the phrase any data you give to into the agreement is (alas) unwarranted. The problem here is the word connect to which surely is not meant to have the breadth of meaning that a literal reading would give it. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODbL, choice of law, and porting (and why ODC won't have a porting process)
2009/5/26 Russ Nelson r...@cloudmade.com: Also look at the EU Public License. It's a reciprocal license for software (specifically mentions source code). The most interesting thing about it is that it was done on the EU Commission level, AND they got the associated governments to all agree that infringements of the license may be litigated under any lanauge version of the license. I don't know if the licenses were ported or translated (following your use of those two terms), but the goal was The licence (as I read it) doesn't need porting. In other words it is written in such a way that the broadly the same effect is achieved whatever law happens to govern it. I say broadly because I there will be issues to do with (for example) moral rights which might differ in different places, but there is nothing you could reasonably do about them even if you did try to port the licence. [I am somewhat simplifying I know]. Part of the reason this works is because software copyright law is subject to a great deal of harmonisation across the EU. Trying to do the same thing with databases world-wide would be a harder drafting task. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODbL: Defining Substantial in OSM's Context
2009/5/5 Lauri Hahne lauri.ha...@gmail.com: I think the problem here is that our own definition of substantial is by no means binding. The definition of substantial in ODbL comes pretty straight from EU's database directive and the definition is ultimately up to courts to decide. I'm reluctant to poke my nose in since I'm only recently on this mailing list and there's lots of history, but its not quite as simple as that. If you try to sue someone for infringement of a database right then - whatever the licence might say - if the court finds they have not infringed then that is that. So far so good. But I understood that the ODbL is intended for situations where the sui generis database right may not apply (or something analogous) and where it may be possible to impose a duty via contract. If that is the case, then the contractual liability is something quite separate and would be determined by construing the contract (i.e. the licence in this case which I understand has a dual nature if your jurisdiction believes that licences can be things that are different from contracts as mine does). In that case there is no harm in putting a definition in. Furthermore, if the licence permits copying where the database right would not (in other words of the courts decide that our definition is narrower than that of the directive) then that *is* useful because it means that a user of the data can rely on our definition as giving permission without worrying about what the precise extent of the case law (which might shift) might be. I hope that makes sense. -- Francis Davey ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
