Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-03-01 Thread Gustav Foseid
On Sat, Feb 28, 2009 at 8:34 PM, Frederik Ramm frede...@remote.org wrote:

 Not on the map per se, but if you use the map to re-create the original
 database then - at least that's what I was thinking! - you are not using
 your own database but you are (again) using the database compiled by the
 original owner, so you need his permission to use it. This is - I
 thought - absolutely independent of the channel through which you
 received the original database.


Think of CC0 (waive all database rights) or WTFPL (Can I... trace from the
map and sell the result?). With such licenses you can not keep any databse
rights.

But then again, the ODbL says [a]ny product of this type of reverse
engineering activity (whether done by You or on Your
behalf by a third party) is governed by this License. I fail to see how a
person having access to only the Produced Work (that would be, for instance,
a user of an online mapping service using OSM data), could be bound by the
ODbL. As long as he or she does not reverse engineer on Your behalf, it
seems such reverse engineering would be allowed.

 - Gustav
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-03-01 Thread Peter Miller


On 1 Mar 2009, at 11:44, Gustav Foseid wrote:

On Sat, Feb 28, 2009 at 8:34 PM, Frederik Ramm frede...@remote.org  
wrote:
Not on the map per se, but if you use the map to re-create the  
original
database then - at least that's what I was thinking! - you are not  
using
your own database but you are (again) using the database compiled by  
the

original owner, so you need his permission to use it. This is - I
thought - absolutely independent of the channel through which you
received the original database.

Think of CC0 (waive all database rights) or WTFPL (Can I... trace  
from the map and sell the result?). With such licenses you can not  
keep any databse rights.


But then again, the ODbL says [a]ny product of this type of reverse  
engineering activity (whether done by You or on Your
behalf by a third party) is governed by this License. I fail to see  
how a person having access to only the Produced Work (that would be,  
for instance, a user of an online mapping service using OSM data),  
could be bound by the ODbL. As long as he or she does not reverse  
engineer on Your behalf, it seems such reverse engineering would  
be allowed.


Agreed. I am awaiting an explanation of this one from someone 'on the  
inside' of the legal negotiations on this one.


I fail to see how one can insist on any terms on a Produced Work that  
is released as PD and I thought this was one of more important  
findings from the last time we reviewed the license (the previous  
version) and this was the reason I suggested that one would have to  
put license conditions on Produced Works. I am not aware of any  
comment from the 'inside' except for the legal council comments to Use  
Case 1 which confirms the ambiguity saying The ODbL imposes no  
license restrictions on the Produced Works, although it does restrict  
reverse engineering the Produced Work in order to re-create the  
Database and place it under a different license.


Ihmo, If this consultation is going to be meaningful we really do need  
some authoritative voices from within the Foundation / License Team on  
the matter  Can anyone hear us?..




Peter






 - Gustav

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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread 80n
On Sat, Feb 28, 2009 at 10:26 AM, Richard Fairhurst rich...@systemed.netwrote:


 CC-BY-SA says:

 You may distribute, publicly display, publicly perform, or publicly
 digitally perform a Derivative Work only under the terms of this License, a
 later version of this License with the same License Elements as this
 License, or a Creative Commons iCommons license that contains the same
 License Elements as this License (e.g. Attribution-ShareAlike 2.0 Japan).

 slightly provocative
 Could we ask CC to declare that the new fabulous ODbL, after due revision
 and comments by the community, can be considered a Creative Commons
 iCommons
 licence for the purposes of the above - in much the same way as FSF
 permitted migration from GFDL to CC-BY-SA?
 /slightly provocative



It's my understanding that the ODbL is very different from a CC-BY-SA
license, so I think this would be a very unlikely thing to happen.

More importantly the Factual Information License, which is what contributors
will actually be signing up to, is totally unlike CC-BY-SA in every respect.

80n




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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Richard Fairhurst

80n wrote:
 It's my understanding that the ODbL is very different from a CC-BY-SA
 license, so I think this would be a very unlikely thing to happen.

It's a share-alike licence with some attribution provision - I'd say that,
in fact, the two licences have pretty much the same intent. It's just that
one works for data and the other doesn't.

Two incompatible licences with the same intent is broadly why FSF agreed
to facilitate Wikipedia's migration to CC-BY-SA, too.

 More importantly the Factual Information License, which is what
 contributors
 will actually be signing up to, is totally unlike CC-BY-SA in every
 respect.

Right - so is the proposal that contributors actually sign up to FIL?
There's been some uncertainty over that in the past.

cheers
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread 80n
On Sat, Feb 28, 2009 at 10:50 AM, Richard Fairhurst rich...@systemed.netwrote:


 80n wrote:
  It's my understanding that the ODbL is very different from a CC-BY-SA
  license, so I think this would be a very unlikely thing to happen.

 It's a share-alike licence with some attribution provision - I'd say that,
 in fact, the two licences have pretty much the same intent. It's just that
 one works for data and the other doesn't.


It does have a share alike clause but it is different from the CC one.  As
it gives the user fewer rights it's hard to see how it would be compatible.

It does have an attribution clause but it is different from the CC one.  The
attribution is not to the original author.  Again fewer rights for the
contributor.


 Two incompatible licences with the same intent is broadly why FSF agreed
 to facilitate Wikipedia's migration to CC-BY-SA, too.


  More importantly the Factual Information License, which is what
  contributors
  will actually be signing up to, is totally unlike CC-BY-SA in every
  respect.

 Right - so is the proposal that contributors actually sign up to FIL?
 There's been some uncertainty over that in the past.


Database rights only exist for collections.  A single person's contribution
may not, on its own, be a database.  The only proposal I've seen, and it
appears to be a bit of an afterthought, is that contributors assign away
*all* their rights by agreeing to FIL.

I wonder if we are all discussing the wrong license?  The FIL seems to be a
much more important consideration for contributors than the ODbL.

80n





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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Richard Fairhurst

80n wrote:
 It does have a share alike clause but it is different from the CC one.
 As it gives the user fewer rights it's hard to see how it would be 
 compatible.

In the analogue case, GFDL's share-alike is different from CC-BY-SA's, yet
the relicensing happened. The point is that compatible can actually be
decided by CC themselves.

This thing about ODbL giving the user fewer rights is an absolute canard
(quack). ODbL is not weaker copyleft than CC-BY-SA, it's simply expressed in
a way that is relevant to data. It provides the user with protection in
jurisdictions where copyright may not apply to data: CC-BY-SA doesn't. It
requires the producer of a derivative to publish the source: CC-BY-SA
doesn't.

Against this, ODbL clearly defines where the boundaries of sharealike lie in
relation to data. In some particular cases this could be viewed as fewer
rights. I actually don't see it that way. CC-BY-SA's application to data is
so unclear that the user effectively abrogates their rights in favour of the
guys with the best lawyers, who can pay to have it interpreted their way.
That isn't, by any stretch, more rights than ODbL - unless you're Google.

 It does have an attribution clause but it is different from the CC one.
 The attribution is not to the original author.  Again fewer rights for 
 the contributor.

Again, that's not true. ODbL simply says in 4.2c that you must c. Keep
intact any copyright or Database Right notices and notices that refer to
this Licence. That provides attribution to the copyright/db right holder,
i.e. the original author.

 [...]
 Database rights only exist for collections.  A single person's
 contribution
 may not, on its own, be a database.

That's definitely not true. A single person's contribution may certainly be
a database. The EU database right legislation makes no requirement for
multiple authorship and neither does ODbL.

 The only proposal I've seen, and it
 appears to be a bit of an afterthought, is that contributors assign away
 *all* their rights by agreeing to FIL.
 I wonder if we are all discussing the wrong license?  The FIL seems to be 
 a much more important consideration for contributors than the ODbL.

I definitely agree (yay) that the ODbL/FIL relationship needs much more
discussion than it's had to date.

I believe Jordan's original intent (but he can say this much better than me,
and contradict me if necessary) was that users' contributions could
individually be licensed under ODbL. Your contributions would be ODbL. My
contributions would be ODbL. OSM would aggregate them into one big ODbL
database. The multiple-attribution question is answered either by a
location (such as a relevant directory) where a user would be likely to look
for it (4.2d) being www.openstreetmap.org - or by users agreeing, as a
condition of contributing to OSM, that they choose not to place any
copyright or database right _notices_ on their contribution other than a
reference to ODbL.

cheers
Richard
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread 80n
On Sat, Feb 28, 2009 at 11:34 AM, Richard Fairhurst rich...@systemed.netwrote:


 80n wrote:
  It does have a share alike clause but it is different from the CC one.
  As it gives the user fewer rights it's hard to see how it would be
  compatible.

 In the analogue case, GFDL's share-alike is different from CC-BY-SA's, yet
 the relicensing happened. The point is that compatible can actually be
 decided by CC themselves.

 This thing about ODbL giving the user fewer rights is an absolute canard
 (quack). ODbL is not weaker copyleft than CC-BY-SA, it's simply expressed
 in
 a way that is relevant to data. It provides the user with protection in
 jurisdictions where copyright may not apply to data: CC-BY-SA doesn't. It
 requires the producer of a derivative to publish the source: CC-BY-SA
 doesn't.


I agree that ODbL does provide some additional rights, but it also removes
some rights and those are the ones that are are important to consider in the
context of an automatic relicensing.



 Against this, ODbL clearly defines where the boundaries of sharealike lie
 in
 relation to data. In some particular cases this could be viewed as fewer
 rights.


Indeed it is exactly this case I had in mind, where the license gives the
contributor fewer rights.  It creates a class of derivative works, called
Produced Works, that are not share alike.



 I actually don't see it that way. CC-BY-SA's application to data is
 so unclear that the user effectively abrogates their rights in favour of
 the
 guys with the best lawyers, who can pay to have it interpreted their way.
 That isn't, by any stretch, more rights than ODbL - unless you're Google.

  It does have an attribution clause but it is different from the CC one.
  The attribution is not to the original author.  Again fewer rights for
  the contributor.

 Again, that's not true. ODbL simply says in 4.2c that you must c. Keep
 intact any copyright or Database Right notices and notices that refer to
 this Licence. That provides attribution to the copyright/db right holder,
 i.e. the original author.


The attribution is to the owner of the database, not the author of the
work.  There is no requirement in ODbL to provide attribution to the authors
of the database's content.  Indeed the ODbL asserts that it provides no
protection over any of the content, just on the database as a collective
whole.  It makes the provision for the database content to be protected by
some other mechanism, such as copyright, but we see that the proposed FIL
license doesn't provide that protection.




  [...]
  Database rights only exist for collections.  A single person's
  contribution
  may not, on its own, be a database.

 That's definitely not true. A single person's contribution may certainly be
 a database. The EU database right legislation makes no requirement for
 multiple authorship and neither does ODbL.


Let me clarify.  The database right applies to a collection of facts.  An
individual contribution may not qualify as a database if it is not a
significant collection of facts, not because it is just one person.  Most
individual contributions will be insufficient *on their own* to constitute a
database.

If someone were to spend a few weeks mapping a town and then contribute that
town in one shot then that may be a database and so could be submitted to
OSM under an ODbL license.  But I don't think we want to encourage that kind
of behaviour.

The average contribution, a single editing session with JOSM or Potlatch,
would not constitute a database.




  The only proposal I've seen, and it
  appears to be a bit of an afterthought, is that contributors assign away
  *all* their rights by agreeing to FIL.
  I wonder if we are all discussing the wrong license?  The FIL seems to be
  a much more important consideration for contributors than the ODbL.

 I definitely agree (yay) that the ODbL/FIL relationship needs much more
 discussion than it's had to date.

 I believe Jordan's original intent (but he can say this much better than
 me,
 and contradict me if necessary) was that users' contributions could
 individually be licensed under ODbL.


If that were the case then the FIL license would not be necessary.

Your contributions would be ODbL. My
 contributions would be ODbL. OSM would aggregate them into one big ODbL
 database. The multiple-attribution question is answered either by a
 location (such as a relevant directory) where a user would be likely to
 look
 for it (4.2d) being www.openstreetmap.org - or by users agreeing, as a
 condition of contributing to OSM, that they choose not to place any
 copyright or database right _notices_ on their contribution other than a
 reference to ODbL.


Attribution to individuals is really really important to many contributors.
They give their time and effort, attribution is the *only* reward for these
people.  They want to be able to say I did that.






 cheers
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Frederik Ramm
80n,

 Indeed it is exactly this case I had in mind, where the license gives the
 contributor fewer rights.  It creates a class of derivative works, called
 Produced Works, that are not share alike.

In my opinion, OSM's value is almost entirely in its being a database. 
If OSM were not a database, then any meaningful use of OSM I could think 
of would first require converting it into one! A license that protects 
this core capacity and makes sure that OSM data, when 
published/used/whatever as a database, remains free, does IMHO indeed 
capture the essential bit without wasting energy on the fringes.

You are right in saying that a Produced Work under ODbL does not carry 
the same restrictions as many believe it now has under CC-BY-SA, but I 
fail to see the use of implementing such restrictions. In my eyes, there 
is nothing worth protecting in a Produced Work when our data has 
lost its essential capability of being accessed as a database.

And the essential capability of database-ness is protected, as Richard 
pointed out, even if the data should be conveyed by means of a Produced 
Work.

Bye
Frederik

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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Frederik Ramm
Hi

Richard Fairhurst wrote:
 FWIW, I do think that the ODbL Produced Work provisions _may_ need
 rewording. There seems to be a myth around here that a Produced Work can be
 public domain. Clearly it can't - not in the traditional sense of PD -
 because of 4.7 (the Reverse Engineering provision that dictates that the
 data is still copyleft). If there is any restriction on a work, it isn't PD.

I always thought that the reverse engineering provision would apply 
automatically through the database directive, so even if we allowed a 
Produced Work to be PD then reassembling them into a database would 
still make that database protected, but this was perhaps seen too much 
through European eyes.

Sadly, this makes it impossible to create a derived product from OSM-old 
and OSM-new because it could not be CC-BY-SA with that added 
restriction. So my before-after slippy map would have to be layered 
application.

Bye
Frederik

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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Rob Myers
 Very roughly (I'm generalising here), in both cases, Derivatives refer =
to a
 situation where the entire result is copyleft, Collectives refer to
 something where only part of it is.=20

A collective work includes the untransformed work.

A derivative work adapts it in some way.

One can claim copyright on either (IIRC), but as a pragmatic move
alternative licences tend to ignore collective works.

 Produced Works are a subclass of the
 latter, not a new class at all. The data component is still copyleft, a=
nd a
 stronger copyleft than CC-BY-SA gives, but other independently sourced
 components may not be.

Is this to handle the way people wish layers to work?

- Rob.



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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Frederik Ramm
Hi,

Gustav Foseid wrote:
 The database directive does not stop you from making a geographic database,
 rendering it as a map and then releasing it under something like CC0. I am a
 bit unsure what kind of restriction the database directive could possibly
 have placed on that map.

Not on the map per se, but if you use the map to re-create the original 
database then - at least that's what I was thinking! - you are not using 
your own database but you are (again) using the database compiled by the 
original owner, so you need his permission to use it. This is - I 
thought - absolutely independent of the channel through which you 
received the original database.

Bye
Frederik

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[OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Richard Fairhurst

CC-BY-SA says:

You may distribute, publicly display, publicly perform, or publicly
digitally perform a Derivative Work only under the terms of this License, a
later version of this License with the same License Elements as this
License, or a Creative Commons iCommons license that contains the same
License Elements as this License (e.g. Attribution-ShareAlike 2.0 Japan). 

slightly provocative
Could we ask CC to declare that the new fabulous ODbL, after due revision
and comments by the community, can be considered a Creative Commons iCommons
licence for the purposes of the above - in much the same way as FSF
permitted migration from GFDL to CC-BY-SA?
/slightly provocative

cheers
Richard
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Frederik Ramm
Hi,

Richard Fairhurst wrote:
 Could we ask CC to declare that the new fabulous ODbL, after due revision
 and comments by the community, can be considered a Creative Commons iCommons
 licence

No, you'd never get Apple to agree.

Bye
Frederik


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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread 80n
On Sat, Feb 28, 2009 at 12:57 PM, Richard Fairhurst rich...@systemed.netwrote:


 80n wrote:
  Indeed it is exactly this case I had in mind, where the license gives
  the contributor fewer rights.  It creates a class of derivative works,
  called Produced Works, that are not share alike.

 No. This is really, really important.


No.  CC-BY-SA does not have a class of derivative works that are not share
alike.  ODbL does.  Under ODbL the share alike clause does not apply to any
derivative works (except derived databases).  This is clearly *less*
restrictive than CC-BY-SA.  We are asking people to agree to a weaker
license in this particular respect.



 The concept of a Produced Work is not ODbL magically exempting more works
 from copyleft. Produced Works is simply ODbL's effort to _define_ something
 that exists in all copyleft licences. It isn't a new class of restriction.


Yes it is.  CC-BY-SA does not exempt any derived work from share alike.
ODbL does.



 * CC-BY-SA uses two terms to describe how work uses the original:
 Derivative Work and Collective Work.
 * ODbL uses three terms: Derivative Database, Produced Work and Collective
 Database.

 Very roughly (I'm generalising here), in both cases, Derivatives refer to a
 situation where the entire result is copyleft, Collectives refer to
 something where only part of it is. Produced Works are a subclass of the
 latter, not a new class at all. The data component is still copyleft, and a
 stronger copyleft than CC-BY-SA gives, but other independently sourced
 components may not be.

 We have this at the moment. Think of CloudMade's* routing application. Its
 raison d'etre is OSM data, and anything derived from that is theoretically
 copyleft (not, ahem, that CC-BY-SA requires it to be contributed back). But
 no-one is suggesting that CloudMade have to release their code under
 CC-BY-SA. The GPL is similar. If you compile a program with GCC, the binary
 contains all the optimisations that are probably the most creative aspect
 of GCC, so in moral terms it could be considered a derivative. But no-one's
 suggesting your code therefore has to be GPLed.

 ODbL just uses a new term to help firm up the boundaries. The fact we're
 still arguing five years on (cf flosm.de) about what's derivative and
 collective when CC-BY-SA is applied to data shows how better terminology is
 desperately needed.


 FWIW, I do think that the ODbL Produced Work provisions _may_ need
 rewording. There seems to be a myth around here that a Produced Work can be
 public domain. Clearly it can't - not in the traditional sense of PD -
 because of 4.7 (the Reverse Engineering provision that dictates that the
 data is still copyleft). If there is any restriction on a work, it isn't
 PD.
 This is perhaps not apparent and could do with hardening up.


I agree that a Produced Work is not PD.  Strictly it's licensed as an ODbL
Produced Work, but as you say it's very hard to figure out what rights such
a work has just from trying to read the ODbL.  Redrafting is required to
make this part of the license usable.




  The attribution is to the owner of the database, not the author of the
  work.  There is no requirement in ODbL to provide attribution to the
  authors of the database's content.  Indeed the ODbL asserts that it
  provides no protection over any of the content, just on the database
  as a collective whole.  It makes the provision for the database content
  to be protected by some other mechanism, such as copyright, but we
  see that the proposed FIL license doesn't provide that protection.

 Again, this hinges on whether FIL _is_ what's proposed. I don't believe
 that
 was Jordan's intention.


As I understand it Jordan is not our lawyer and cannot advise us on whether
or not we should use the FIL.

According to Grant's email of Feb 27th OSMF have been advised by Clark Asay
of Wilson Sonsini to use the FIL.  Grant can you publish a copy of that
advice so that we can see exactly what was said please?





 The wiki is contradictory: in one place it says
  Sign up page now states you agree to license your changes under both
 CCBYSA and also ODbL.

 but in another
  when you upload your individual contributions, you agree to licence them
 under the Factual Info Licence.

 You're on the OSMF board, you can tell us. :)


The FIL has never been discussed by the OSMF board.  I know no more about it
than you.



 For what it's worth, I
 distinctly remember Jordan telling me in Reading that he expected
 individual
 users to license their contributions under ODbL; and though in my heart of
 hearts I'm a PD person and prefer things like the FIL, I too think that
 ODbL
 is pragmatically what OSM should be adopting here.

   [...]
   Database rights only exist for collections.  A single person's
   contribution may not, on its own, be a database.
  [...]
  Let me clarify.  The database right applies to a collection of facts.
  An individual contribution may not qualify as a database if it 

Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread Richard Fairhurst

80n wrote:
 No.  CC-BY-SA does not have a class of derivative works that are not 
 share alike.  ODbL does.

No it doesn't, that's the entire point of what I said. (Is this the
five-minute argument or the full half-hour?) This is what 4.7 in ODbL is all
about. The data is still protected, if that's the kind of language you
like, by share-alike at all times.

 As I understand it Jordan is not our lawyer and cannot advise us on 
 whether or not we should use the FIL.

So now I am utterly confused.

Some people called Wilson Sonsini have advised us to use ODbL in a manner
which is not, AIUI, the manner recommended by the licence co-author, who one
would presume understands these things.

And here I am debating with an OSMF board member who appears to be arguing
_against_ the licence being recommended by OSMF.

What on earth is going on?

Richard
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Re: [OSM-legal-talk] A Creative Commons iCommons license

2009-02-28 Thread 80n
On Sat, Feb 28, 2009 at 2:41 PM, Richard Fairhurst rich...@systemed.netwrote:


 80n wrote:
  No.  CC-BY-SA does not have a class of derivative works that are not
  share alike.  ODbL does.

 No it doesn't, that's the entire point of what I said. (Is this the
 five-minute argument or the full half-hour?) This is what 4.7 in ODbL is
 all
 about. The data is still protected, if that's the kind of language you
 like, by share-alike at all times.


Let's recap.  This thread started with your question about whether it would
be feasible to just ask CC to agree that ODbL was a compatible license and
avoid all the trouble of having to bother contributors with lots of boring
legal stuff.

I replied by suggesting that the ODbL license is not compatible and in some
cases removes rights that the contributor currently has.

So let's stay focussed not on the additional protections that ODbL offers,
but on those rights that it takes away.

If I create a nice rendering of some OSM data under the current license it
is a derivative work that is covered by CC and both the share-alike and
attribution clauses explicitly apply to it.

If I create the same nice rendering under the ODbL then it is classed as a
Produced Work.  A produced work is subject to attribution (4.3) but is not
subject to share alike (4.5b).

Since share alike is a key part of the CC-BY-SA license this is a clear
example of a case where a contributors rights are less in the ODbL than in
CC-BY-SA.  That's why it would be very unlikely that CC would agree to class
ODbL as a compatible license.  Because it isn't compatible.




  As I understand it Jordan is not our lawyer and cannot advise us on
  whether or not we should use the FIL.

 So now I am utterly confused.

 Some people called Wilson Sonsini have advised us to use ODbL in a manner
 which is not, AIUI, the manner recommended by the licence co-author, who
 one
 would presume understands these things.


Well Jordan is the author of the FIL and we can assume he did it for a
reason.  It is published adjacent to the ODbL license on a web-site that is
managed by Jordan, so I think there are some clues there.

It's quite possible that Jordan had a different opinion a year ago when all
this kicked off.




 And here I am debating with an OSMF board member who appears to be arguing
 _against_ the licence being recommended by OSMF.

 What on earth is going on?


I'm neither argueing for or against the license.  I'm engaging in a
conversation that I hope will help me, and others, to better understand the
implications of the new license.  Most board members have only recently seen
a copy of the license so they have no more knowledge about it than anyone
else.

We will be making a decision on whether to recommend it to OSMF membership
at our board meeting on March 31st and I'm sure that all the board members
will be paying close attention to the discussions on these various forums
between now and then.  I doubt any board member would put their name to the
license without careful consideration.

And for the record, I haven't spent enough time with the license yet to know
which way I might go on it.

80n





 Richard
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