Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 10/28/09, Erik Johansson wrote: > On Wed, Oct 28, 2009 at 9:08 PM, Matt Amos wrote: >> we had a long thread on this a couple of weeks ago (ODbL "virality" >> questions) from which i think the consensus was that linking OSM data >> with data from independent sources creates a collective database, >> rather than a single derivative database. > > No that was what The PD/Fairhurst Doctrine states. ODBL seems to mean > that we loose almost everything that is share-alike with the current > license if we don't interpret the collective database loop hole a lot > harder than what The PD Doctrine does. the Fairhurst doctrine was an interpretation of the ODbL - in my opinion it's the best interpretation and doesn't create any loopholes. cheers, matt ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos writes:
[CC-BY-SA unclear, or not permissive enough?]
>>>We know for a fact that a number of people (especially people that have
>>>asked their lawyers for an opinion) have indeed decided not to use our
>>>data for this reason.
>>
>>That is certainly a good reason to switch to a simpler and legally
>>unambiguous licence. Have these same lawyers reviewed the ODBL and given
>>it the thumbs up?
>
>Several lawyers have looked at ODbL and commented.
Yes - specifically what I was asking about was whether these same people
who decided they were unable to use OSM data under CC-BY-SA would be
happy to use it under ODBL. (Myself, I suspect not!)
>you say simpler and legally unambiguous, but it's become clear to me
>from my work on the LWG that it is impossible for something to be
>simple, unambiguous and global in scope. copyright law is sort-of
>harmonised across the world by the Berne, Buenos Aires and Universal
>Copyright Conventions, which makes it easier to write licenses based
>on copyrights. there's just nothing like that for mostly factual
>databases yet.
Agreed. My inclination would be to keep things simple and stick with
copyright - with an additional permission grant of the database right
in countries where a database right exists. ('You may use and copy
the database as long as you distribute the result under CC-BY-SA, and
grant this same database permission to the recipient.')
Clearly there is a tradeoff to be made between simplicity and covering
every possible theoretical case where somebody in some jurisdiction might
possibly be able to persuade a court that they can copy OSM's data.
It seems that the ODBL optimizes for the latter.
>here is my rationale for moving away from CC BY-SA
>http://www.osmfoundation.org/wiki/License/Why_CC_BY-SA_is_Unsuitable
Thanks. Those are indeed problems with the licence. But only the first
one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
addressed by dual-licensing under both Creative Commons and some other,
more permissive (and acceptable-to-some-lawyers) licence. I would happily
support such a move.
--
Ed Avis
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Frederik Ramm writes: >http://lists.openstreetmap.org/pipermail/legal-talk/2008-February/000637.html > >I don't know if the License Working Group have pursued this further in >the mean time; at the time, we arrived at roughly the same conclusion >that you did (we can sue them for damages but if there are no damages >then there's no case). > However, you are wrong in alluding that there is a choice: >It is quite clear (at least to me) that our data cannot be protected by >copyright alone; This is where I disagree (or at least, am unpersuaded so far) since I haven't seen any hard evidence that copyright is inadequate. If this were the case, then there would be no need for anybody to give permission for relicensing, since under the current copyright-only setup anybody (including the OSMF) could just take the data and relicense it under the terms they want. >but if our data is not protected by copyright, and if >the jurisdiction in question does not have a "sui generis" database law, I would say that in this case, the wise citizens and parliament of that jurisdiction have decided that map data should be free, and good luck to them. After all the purpose of the OSM project is to have freely-available map data; if a law were passed tomorrow putting all maps into the public domain it would be most odd for OSM to start fighting against it. However, I recognize that this is a matter of opinion, not fact, and there must be those within the project who think that we should try to override national law in favour of stronger protections, just as EULAs for computer software attempt to override legal rights to reverse engineering. There is still the small question of whether any such place exists. Again, is there any evidence (rather than just repetition of the same opinions) that in some country, OSM data is effectively in the public domain? And is that country significant enough to make it worth imposing a new, contract- based licence on the rest of the world just to address this 'problem'? What harm would it cause in practice if Elbonia did not recognize copyright in maps? >The Science Commons people, righly, say that it is morally doubtful to >claim copyright where none exists, and I think in this vein the ODbL is >morally superior to CC-BY-SA for OSM data, because the latter is based >on copyright which in all likelihood does not exist for OSM data. That's interesting. However the ODBL also claims to be a copyright licence, while acknowledging that what is copyrightable varies between jurisdictions. -- Ed Avis ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Ed, the question "what avenues do we have open if someone breaches the contract" has been discussed on legal-talk, for example in this thread: http://lists.openstreetmap.org/pipermail/legal-talk/2008-February/000637.html I don't know if the License Working Group have pursued this further in the mean time; at the time, we arrived at roughly the same conclusion that you did (we can sue them for damages but if there are no damages then there's no case). Someone brought up the idea of "punitive damages" but I don't believe in it. So yes, this is a weak point - the whole contractual element of the ODbL is a very weak point indeed as it is very conceivable that violators will claim they never entered into the contract in the first place. However, you are wrong in alluding that there is a choice: > I am concerned that the ODBL throws this away by explicitly stating > that 'the ODbL is also an agreement in contract'. Does that not > weaken the ability to take out injunctions or seek other equitable > remedies against those who violate the licence? It is quite clear (at least to me) that our data cannot be protected by copyright alone; but if our data is not protected by copyright, and if the jurisdiction in question does not have a "sui generis" database law, then we do not have the option to build a "permission based" license because nobody needs permission to use our data! So, and that takes us back to RichardF being quoted in the posting cited at the beginning, the ODbL at least *tries* to use all avenues open to us. The Science Commons people, righly, say that it is morally doubtful to claim copyright where none exists, and I think in this vein the ODbL is morally superior to CC-BY-SA for OSM data, because the latter is based on copyright which in all likelihood does not exist for OSM data. Bye Frederik -- Frederik Ramm ## eMail frede...@remote.org ## N49°00'09" E008°23'33" ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
