Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: you'd happily support distributing the data under a license which is not likely to protect it? I happily support the status quo, where map data is freely available under CC share-alike terms, and I see no evidence of evil mapmakers copying it with impunity. I think he's asking for evidence of not likely. that can be found in the why cc by-sa is unsuitable document. i went into the first point at length, referencing some legal precedents (mostly in the US). i've had several people look over and check the document, including lawyers, so i'm fairly sure that the reasoning isn't wrong. The legal theory sounds reasonable as far as it goes, but there is little evidence that there is any problem in practice. Has any lawyer in fact said to you: as things stand, it is quite possible to copy OSM data in the United States, redistribute it under any restrictive licence you want, with nothing that the OSM contributors can do about it; and I would give this legal advice to my clients. In my view this is very far from being the case. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Ed, I don't quite follow your logic. You seem to be saying: 1. there is no proof that CC-BY-SA doesn't work; 2. there is danger that anything based on contract law weakens the protection we have for our data (because breach of contract doesn't give us a strong handle) 3. you accept that CC-BY-SA uncertainties may have turned off some potential users 4. you would happily go along with dual-licensing OSM under CC-BY-SA and some other, more permissive license. Is that a correct sum-up? If so, then would not the other, more permissive license you are willing to grant in 4 automatically lead to the weakened protection from 2? Dual licensing, after all, means that the licensee can choose any of the available licenses and not be bound by all the others he or she does not choose. Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 11:20 AM, Ed Avis e...@waniasset.com wrote: Matt Amos zerebub...@... writes: you'd happily support distributing the data under a license which is not likely to protect it? I happily support the status quo, where map data is freely available under CC share-alike terms, and I see no evidence of evil mapmakers copying it with impunity. absence of evidence isn't evidence of absence, and so forth ;-) I think he's asking for evidence of not likely. that can be found in the why cc by-sa is unsuitable document. i went into the first point at length, referencing some legal precedents (mostly in the US). i've had several people look over and check the document, including lawyers, so i'm fairly sure that the reasoning isn't wrong. The legal theory sounds reasonable as far as it goes, but there is little evidence that there is any problem in practice. so it makes sense to move to ODbL - then there's a sound theory as well as no problems in practice. Has any lawyer in fact said to you: as things stand, it is quite possible to copy OSM data in the United States, redistribute it under any restrictive licence you want, with nothing that the OSM contributors can do about it; and I would give this legal advice to my clients. In my view this is very far from being the case. of course not - lawyers don't talk like that. lawyers have actually said to me; CC BY-SA isn't a strong license for factual data. it would be difficult to defend in the US and other jurisdictions where copyright doesn't cover factual data. from looking at the case law, both RichardF and i have come to the conclusion that CC BY-SA just doesn't work for OSM, and that ODbL is better (fsvo better). the science commons people also looked at CC licenses for non-creative data [1] and came to the conclusion that: Many databases, however, contain factual information that may have taken a great deal of effort to gather, such as the results of a series of complicated and creative experiments. Nonetheless, that information is not protected by copyright and cannot be licensed under the terms of a Creative Commons license. so, no - no lawyer has ever given me a statement as strongly-worded as i'd advise my clients to take OSM data and re-license it, presumably because there is some risk that we could sue in NL or BE or something like that. on the other hand, from a defensibility point-of-view, OSMF can't possibly enforce all its rights in dutch and belgian courts - many license violators will have no assets or presence in the EU. if we carry on licensing CC BY-SA we may get to the state where CC BY-SA is challenged. if the challenge is in the US, i think there's a good chance of OSMF losing, in which case we would have to scramble to get a new license in place. the way i see it, there are two options: 1) decide that licensing is more trouble than it's worth and PD the lot (since that would be more-or-less the effect of losing a challenge in the US anyway), 2) move to a more defensible license before CC BY-SA is challenged. cheers, matt [1] http://sciencecommons.org/resources/faq/databases/#canicc ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: I happily support the status quo, where map data is freely available under CC share-alike terms, and I see no evidence of evil mapmakers copying it with impunity. absence of evidence isn't evidence of absence, and so forth If someone is taking OSM data and misusing it secretly, then they would be able to continue doing that whatever licence was chosen. So we only need to consider cases where a violation becomes publicly known. The legal theory sounds reasonable as far as it goes, but there is little evidence that there is any problem in practice. so it makes sense to move to ODbL - then there's a sound theory as well as no problems in practice. It's an argument in favour of moving. I don't agree that it outweighs the costs of moving, or the loss in no longer having map data available under a Creative Commons, non-EULA licence. (I did raise the question of whether ODBL is in fact less enforceable, since it claims to be a contract, which would make injunctions difficult to get. Apparently this issue has been taken into consideration by the lawyers.) Has any lawyer in fact said to you: as things stand, it is quite possible to copy OSM data in the United States, redistribute it under any restrictive licence you want, of course not - lawyers don't talk like that. lawyers have actually said to me; CC BY-SA isn't a strong license for factual data. it would be difficult to defend in the US and other jurisdictions where copyright doesn't cover factual data. While that is a long way from 'yes, you have a straightforward way to sue', it is also very different from 'no, it's clear that your licence is unenforceable'. The issue is a shade of grey and the question is just what shade is enough. so, no - no lawyer has ever given me a statement as strongly-worded as i'd advise my clients to take OSM data and re-license it, presumably because there is some risk that we could sue in NL or BE or something like that. Indeed. And isn't that enough deterrent? Are we really up against some Dr Evil figure with an unlimited legal budget to try every possible way to make illicit copies of OSM data in some jurisdiction? Isn't the reality that no company would ever consider it worth the legal risk to start appropriating OSM's data, even in the USA? on the other hand, from a defensibility point-of-view, OSMF can't possibly enforce all its rights in dutch and belgian courts - many license violators will have no assets or presence in the EU. There is something a bit wrong with this argument, IMHO: the OSM project does not exist in order to enforce certain rights. It exists to provide free map data to the world, and enforcing share-alike terms is a means to that end. We need to enforce just enough of the project's rights to promote the free availability of maps, not strive to close down every possible legalistic opening. if we carry on licensing CC BY-SA we may get to the state where CC BY-SA is challenged. if the challenge is in the US, i think there's a good chance of OSMF losing, Would that be such a disaster? If such a precedent were set, then any factual data derived from OSM would also be in the public domain in that country, and could be shared freely and incorporated into the project, giving just the same result as if CC-BY-SA were in force. Indeed one way to think about CC-BY-SA (apart from the attribution requirement) is that it tries to simulate a situation where all content is in the public domain. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Frederik Ramm frede...@... writes: You seem to be saying: 1. there is no proof that CC-BY-SA doesn't work; 2. there is danger that anything based on contract law weakens the protection we have for our data (because breach of contract doesn't give us a strong handle) 3. you accept that CC-BY-SA uncertainties may have turned off some potential users 4. you would happily go along with dual-licensing OSM under CC-BY-SA and some other, more permissive license. Yes that seems fair. If so, then would not the other, more permissive license you are willing to grant in 4 automatically lead to the weakened protection from 2? Yes. If the alternative licence were some kind of contract, then you can get people claiming that they didn't agree to the contract, or it's unenforceable, or that they did violate it but caused no monetary harm to the project so no damages are payable. However, if the current CC-BY-SA licence is putting off some people from using OSM data, this might be a worthwhile tradeoff to make. It might be worth weakening the legal protection somewhat in order to further the project's broader goals of making free map data available. In this particular case, although I'm not convinced that ODBL is more enforceable than CC-BY-SA, it is still enforceable enough to deter anybody who doesn't have a gift voucher for ten million dollars of legal services that they have to spend in the next two years. If we were having this discussion the other way round, to suggest dumping ODBL and moving to Creative Commons, I would probably still argue that the existing licence is strong enough and the theoretical legal scenarios aren't practical enough to cause concern. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Hi, Ed Avis wrote: if we carry on licensing CC BY-SA we may get to the state where CC BY-SA is challenged. if the challenge is in the US, i think there's a good chance of OSMF losing, Would that be such a disaster? If such a precedent were set, then any factual data derived from OSM would also be in the public domain in that country, and could be shared freely and incorporated into the project, giving just the same result as if CC-BY-SA were in force. No, that would be great. My personal belief is that OSMF is going over the top with this whole share-alike thing. ODbL may be a working license, but the question whether we want or need share-alike to achieve our goals is a wholly different one - a question where from day one we had a small but vocal number of project members saying that share-alike is a must, and OSMF never had the balls to question, or even challenge, that. Indeed, the very first official statements from OSMF already contained what is still the official chicken wording today: [A PD license is] unlikely to be adopted by all., or unlikely to be palatable to many OSM contributors. What this has in effect done is given them (the OSM contributors who are against public domain) a veto right - without even counting how many of them there are. Which is strange, given that it is near certain that ODbL will not be adpoted by all and not be palatable to many OSM contributors (simply because there are so many to start with). With the ODbL this does not seem too important - if push comes to shove we're willing to delete and re-create data which is not re-licensed by the respective contributors; but for the PD cause, the fact that there were hardliners unwilling to agree was used as the reason for not pursuing this. I'm happy that the license working group has done a lot of work to present us with the best possible share-alike license for our data. As Matt concedes, this license still has weaknesses, some of which may be fixable at a later date, and others may just be results of trying to be free and enforcing something at the same time. We are now at a point where we have a clear alternative; go ODbL, or go PD. (Or stay with CC-BY-SA but I really think that sticking to the CC-BY-SA is more an expression of wishful thinking that anything else.) PD, of course, has weaknesses too. Still I'm inclined to think that the problems and weaknesses incurred by PD will hurt less than those incurred by ODbL. PD is easy to understand, provides maximum usefulness of our data in all possible circumstances, and requires absolutely zero man-hours of work tracking down violators; creates no community friction because over-eager license vigilantes have to be reined in; poses no risk of seducing OSMF to spend lots of money on lawyers; allows us to concentrate on or core competencies. But to get back to your initial sentence; if OSM were proven to be copyright-free because it contains only factual data, then any factual addition to OSM would probably be copyright-free in that country as well, but if we then take that and put it back into OSM, maybe the author would sue us in another country (he extracts the data in the US where this is free, then transfers it to the UK, then enriches and sells it; we take it, upload it, he sues us in the UK - something like that). It's a mean world out there and if someone wants to create trouble for us they will always find a way. Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: If someone is taking OSM data and misusing it secretly, then they would be able to continue doing that whatever licence was chosen. So we only need to consider cases where a violation becomes publicly known. my point was more like there's no evidence yet. just because it hasn't happened doesn't mean it isn't going to happen. OK. Dr Evil doesn't need an unlimited legal budget - he just needs to live in a country where non-creative data isn't copyrightable. ...and in a country where it is crystal clear that the OSM data is 'non-creative'. That point is far from obvious to me. Even in the USA there is certainly enough meat in OSM for a straightforward copyright infringement case, IMHO. If it were a collection of pure facts with no expressive content and no scope for imagination or judgement then I would agree that trying to enforce share-alike with CC-BY-SA is problematic. if we just wanted to give maps away for free then we'd PD it. if we want stronger copyleft than that, then we have to start thinking about enforcing those copylefts. Yes. But if enforcement comes at a cost, you must trade off how much legal weaponry you want against the disadvantages of a more complex or (in some ways) more restrictive licence. I lock the door of my house, but it is not a worthwhile tradeoff for me to install barbed wire fencing, searchlights or a moat. Even though there is a theoretical possibility someone could break in, the deterrent of a locked door is sufficient in practice. Even though the fact that something hasn't happened in the past does not guarantee it won't happen, I can use the past few years of experience as some justification for saying the current deterrent is enough. The question to ask is not 'is our legal framework absolutely watertight in smacking down anyone, anywhere in the world, who violates the licence' but rather 'is it a strong enough deterrent in practice to make sure that share-alike principles are followed and promote free map data'? if we carry on licensing CC BY-SA we may get to the state where CC BY-SA is challenged. if the challenge is in the US, i think there's a good chance of OSMF losing, Would that be such a disaster? If such a precedent were set, then any factual data derived from OSM would also be in the public domain in that country, PD isn't viral - any factual data derived from OSM might well be protected by other IP rights (e.g: database rights) reserved by the deriver. In the particular case of the US, there is no database right. additionally, there's the difference between what CC BY-SA requires you to share and what ODbL requires you to share. sure, CC BY-SA might keep the tiles in the free domain, but it doesn't keep the data in the free domain. This depends on what exclusionary rights OSMF and the contributors have over the data, which is what we are discussing. If the data is subject to copyright then yes, CC-BY-SA does keep it free. If copyright does not apply and there is no database right to consider, then CC-BY-SA does not work, but I doubt that any other licence would. You can try making a contract or EULA as the ODBL does, but that is flaky; if the data is truly in the public domain, then courts are unlikely to accept that adding any amount of legal boilerplate will change that. If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness and enforceability, you should do the same for ODBL. I don't think that is always the case here. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 1:19 PM, Ed Avis e...@waniasset.com wrote: Matt Amos zerebub...@... writes: Dr Evil doesn't need an unlimited legal budget - he just needs to live in a country where non-creative data isn't copyrightable. ...and in a country where it is crystal clear that the OSM data is 'non-creative'. That point is far from obvious to me. it's crystal clear to me: OSM data represents what exists on the ground - it represents facts. the US definition of creativity is (paraphrasing) that two independent people doing the same thing come up with different outputs, each expressing individual creativity. i'd argue that if two OSM mappers mapped the same features over the same area then the output wouldn't differ significantly (i.e: by more than the tolerance of the GPS/aerial imagery/etc...). therefore OSM data is unlikely to be considered creative. Even in the USA there is certainly enough meat in OSM for a straightforward copyright infringement case, IMHO. If it were a collection of pure facts with no expressive content and no scope for imagination or judgement then I would agree that trying to enforce share-alike with CC-BY-SA is problematic. i don't agree. if we just wanted to give maps away for free then we'd PD it. if we want stronger copyleft than that, then we have to start thinking about enforcing those copylefts. Yes. But if enforcement comes at a cost, you must trade off how much legal weaponry you want against the disadvantages of a more complex or (in some ways) more restrictive licence. I lock the door of my house, but it is not a worthwhile tradeoff for me to install barbed wire fencing, searchlights or a moat. Even though there is a theoretical possibility someone could break in, the deterrent of a locked door is sufficient in practice. Even though the fact that something hasn't happened in the past does not guarantee it won't happen, I can use the past few years of experience as some justification for saying the current deterrent is enough. from discussions with lawyers and reading background case law, i'd say that CC BY-SA for OSM data is like leaving your front door wide open and a sign saying there may or may not be a vicious dog, no-one has found out yet. The question to ask is not 'is our legal framework absolutely watertight in smacking down anyone, anywhere in the world, who violates the licence' but rather 'is it a strong enough deterrent in practice to make sure that share-alike principles are followed and promote free map data'? no legal framework is ever absolutely watertight. ODbL isn't watertight. CC BY-SA is a sieve. if we carry on licensing CC BY-SA we may get to the state where CC BY-SA is challenged. if the challenge is in the US, i think there's a good chance of OSMF losing, Would that be such a disaster? If such a precedent were set, then any factual data derived from OSM would also be in the public domain in that country, PD isn't viral - any factual data derived from OSM might well be protected by other IP rights (e.g: database rights) reserved by the deriver. In the particular case of the US, there is no database right. fine, then privacy or publicity rights, trademark rights, patent rights, or any other IP. the rights aren't important - what's important is that a failure of CC BY-SA is a failure of share-alike. additionally, there's the difference between what CC BY-SA requires you to share and what ODbL requires you to share. sure, CC BY-SA might keep the tiles in the free domain, but it doesn't keep the data in the free domain. This depends on what exclusionary rights OSMF and the contributors have over the data, which is what we are discussing. If the data is subject to copyright then yes, CC-BY-SA does keep it free. If copyright does not apply and there is no database right to consider, then CC-BY-SA does not work, but I doubt that any other licence would. You can try making a contract or EULA as the ODBL does, but that is flaky; if the data is truly in the public domain, then courts are unlikely to accept that adding any amount of legal boilerplate will change that. flaky is better than nothing. CC BY-SA doesn't work and database rights aren't widespread. that doesn't leave much to work with. If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness and enforceability, you should do the same for ODBL. I don't think that is always the case here. yes, let's do the analysis: CC BY-SA in NL, BE: databases are copyrightable, making the ported license strong. the non-ported less so, but the fundamental protections are still there. ODbL in NL, BE: EU database directive makes the license strong. CC BY-SA in wider EU: copyright provisions vary - some countries would follow the creativity model, others would respect the sweat of the brow and give some protection. ODbL in wider EU: database directive makes the license strong. CC BY-SA in other countries: copyright provisions vary - some
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 1:47 PM, Ed Avis e...@waniasset.com wrote: Even if you agree that CC-BY-SA is less than ideal, It's not less than ideal. It's dreadful. The OSMF license team have created a document explaining why. We've had lawyers confirming that it probably doesn't work. Even the people who created it say that it should not be used for data. That is, Creative Commons have advised us, and everyone else, to not use CCBYSA for data. It doesn't come more plain than that. But that hasn't stopped you from having your own opinion, which is that you aren't swayed by all the evidence to the contrary, and whenever you ask for such evidence and it's provided, you seem to shrug it off anyway. I'm not sure if there's any avenue left that we can help you with? If it's your settled decision that CCBYSA is actually OK, even after all this, then I can't think of anything that will help inform your decision more than what's been said already. After all if we go through one big data deletion and relicensing, what's to stop it happening again later? Have you read the proposed contributor terms? I'm not sure whether your question is just rhetorical speculation, or whether you have suggested changes to the proposed contributor terms that might help solve whichever problem it is you think that there might be in the future. Cheers, Andy ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 1:47 PM, Ed Avis e...@waniasset.com wrote: Remember, though, that there are huge transaction costs associated with any licence switch. Even if you agree that CC-BY-SA is less than ideal, it might be better than deleting big chunks out of the database and alienating parts of the contributor base. It might also undermine expectations of the project's stability. After all if we go through one big data deletion and relicensing, what's to stop it happening again later? CC BY-SA is certainly less than ideal - it doesn't protect those copyleft principles in large parts of the world. there has been some FUD about these deletions of data. let me say it here: no data will be deleted. if the re-licensing goes ahead then all of the data that everyone has contributed would be made available through dumps. we could not retrospectively re-license old planet files and dumps, so these would continue to be available. the CC-licensed data would not be deleted. but, of course, it couldn't appear in the ODbL-licensed dumps. PD is easy to understand, provides maximum usefulness of our data in all possible circumstances, and requires absolutely zero man-hours of work tracking down violators; creates no community friction because over-eager license vigilantes have to be reined in; poses no risk of seducing OSMF to spend lots of money on lawyers; allows us to concentrate on or core competencies. Agreed. There is certainly a risk of the project being captured by lawyers or, worse, overenthusiastic amateurs, and getting sidetracked into enforcing rights rather than forwarding its goal of free map data. That is one reason why I think a simpler, less armed-to-the-teeth licence may in the end be a good thing. agreed. we at the LWG have been working very hard to produce the license that we think the majority of OSM contributors want. a large amount of previous discussion on this and the talk MLs has suggested that share-alike is a much-requested feature*, so we've been working to that goal as best we can. your suggestion that we're overenthusiastic amateurs, sidetracking the project is deeply insulting. let's say, for a moment, that CC BY-SA definitely doesn't work and isn't an option. what would you do? if you'd move to a new license, which license? cheers, matt *: it may be that it's only requested by the vociferous minority, but until someone does a rigorous poll of a significant portion of the OSM contributors, it's the only evidence we have. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Hi, Andy Allan wrote: That is, Creative Commons have advised us, and everyone else, to not use CCBYSA for data. It doesn't come more plain than that. I would very much appreciate if *everyone* who invokes Creative Commons saying that CC-BY-SA is not suitable for data would also add the second bit, namely that they suggest using CC0, their PD variant, for data. When Mike Collinson said in hist SOTM speech that Creative Commons do not recommend CC-BY-SA for data, I half-jokingly called from the audience: What *do* they recommend? - but he left that bit out. I didn't think much of this but in the last few days I have read many times over that Creative Commons suggest not to use CC-BY-SA for data (which is true), but nobody ever bothers to say that they actually spoke out against ODbL as well because they believe data should be CC0, that is basically PD. I'm not saying that Creative Commons are always right, but trying to make it sound as if they were endorsing OdBL is a bit heavy. Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 2:28 PM, Frederik Ramm frede...@remote.org wrote: I'm not saying that Creative Commons are always right, but trying to make it sound as if they were endorsing OdBL is a bit heavy. I'm not sure where I mentioned the OdBL? I'm just trying to make the point to Ed that his desire to continue CC-BY-SA licensing is simply not a workable solution. This whole conversation would be much more productive if everyone could accept that the status quo isn't a valid answer, regardless of how much life would be simpler if it was. Cheers, Andy ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: there has been some FUD about these deletions of data. let me say it here: no data will be deleted. if the re-licensing goes ahead then all of the data that everyone has contributed would be made available through dumps. Right. I think everyone understands that, but for an OSM contributor the choice is still either agree, or see your edits disappear from the map and from the database. Of course it has to be that way. I have noticed that some people see it (whether intended or not) as a kind of threat: sign up or say goodbye to your edits. This would be a disadvantage of any licence change, to ODBL or anything else. we at the LWG have been working very hard to produce the license that we think the majority of OSM contributors want. a large amount of previous discussion on this and the talk MLs has suggested that share-alike is a much-requested feature*, so we've been working to that goal as best we can. your suggestion that we're overenthusiastic amateurs, sidetracking the project is deeply insulting. Sorry. I would like to withdraw that remark. It is clear that everyone working on licence issues has the best interests of the project at heart. let's say, for a moment, that CC BY-SA definitely doesn't work and isn't an option. what would you do? if you'd move to a new license, which license? Assuming, then, that a licence change is required (along with 'deleting' data from people who don't agree, etc). I would prefer one which is CC-compatible, so public domain would work, or some permissive licence such as CC0. However, if it is not possible to have both CC-compatible and share-alike properties at the same time, which is what you are suggesting, and if share-alike is considered the more important of the two, then I would choose a licence which tries to enforce share-alike through copyright and database right. In a country where neither copyright nor database right exists for map data, good luck to them - obviously they've realized the value of free map data, which is what OSM has been promoting all along. I would not choose a licence which purports to make a contract, or which would require click-through agreement before downloading planet files. In general, the ideal licence would not need to be fully watertight in all jurisdictions, but only strong enough to provide a good deterrent in practice for most individuals and companies. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 2:40 PM, Ed Avis e...@waniasset.com wrote: I'd be a lot more persuaded if there were evidence of a real, occurring problem rather than a theoretical one. [snip] Or in other words, you still believe the the CC-BY-SA license is fine, all the re-licensing stuff isn't worth it, and you don't see why anything needs changing. The only thing that you say might change your mind is if you are shown more information about lawyer-company scenarios which are simply hypothetical and unknowable, which of course I can't help you with. Fine. Like I said in my last email, I don't think there's anything left I can say. Cheers, Andy ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 28/10/09 14:40, Ed Avis wrote: But strong claims require strong evidence. To claim that CC-BY-SA is 'dreadful' requires, IMHO, evidence of real rather than theoretical cases where it's holding back the goal of free map data. You might tell me that the fence around my field is completely ineffective and I should upgrade to an electric fence, but I might ask on what particular occasion my livestock have managed to escape. If they haven't ever done so, perhaps the fence is working after all. How do you we propose we get this real evidence? Go our and beg somebody to steal our data so we can sue them and see if CC works? Tom -- Tom Hughes (t...@compton.nu) http://www.compton.nu/ ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 2:54 PM, Ed Avis e...@waniasset.com wrote: Matt Amos zerebub...@... writes: we at the LWG have been working very hard to produce the license that we think the majority of OSM contributors want. a large amount of previous discussion on this and the talk MLs has suggested that share-alike is a much-requested feature*, so we've been working to that goal as best we can. your suggestion that we're overenthusiastic amateurs, sidetracking the project is deeply insulting. Sorry. I would like to withdraw that remark. It is clear that everyone working on licence issues has the best interests of the project at heart. thank you. we all want a license which is clear, elegant, understandable and bulletproof. of course, this isn't possible, but we want to get as close as we can to that ideal. let's say, for a moment, that CC BY-SA definitely doesn't work and isn't an option. what would you do? if you'd move to a new license, which license? Assuming, then, that a licence change is required (along with 'deleting' data from people who don't agree, etc). I would prefer one which is CC-compatible, so public domain would work, or some permissive licence such as CC0. which bits need to be CC-compatible? any produced work, i.e: tiles, can be released under CC BY-SA with the ODbL, allowing maps to be included in any CC-licensed work or site. does the database itself need to be CC-compatible? However, if it is not possible to have both CC-compatible and share-alike properties at the same time, which is what you are suggesting, and if share-alike is considered the more important of the two, then I would choose a licence which tries to enforce share-alike through copyright and database right. the ODbL does this. In a country where neither copyright nor database right exists for map data, good luck to them - obviously they've realized the value of free map data, which is what OSM has been promoting all along. I would not choose a licence which purports to make a contract, or which would require click-through agreement before downloading planet files. actually, there's no reason for a click-through to download data. we've discussed this with lawyers and, although it further reduces the enforceability of the license, we don't want to put barriers in the way of people using the data. the current suggestion is to put the license as a link in the header of the file and display the license prominently anywhere that data can be downloaded, just as is the case with CC BY-SA. anyone reading the file, or writing software to manipulate it, would have to be aware of the existence of this link (and of the format of the file) and therefore be aware of the license and their obligations with respect to it. i totally agree it's weaker than a click-through, but it's more practical and better than not having anything. In general, the ideal licence would not need to be fully watertight in all jurisdictions, but only strong enough to provide a good deterrent in practice for most individuals and companies. indeed. but until there's a near-global consensus on database rights (as the Berne convention does for copyrights) we don't have that option. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Hi, Ed Avis wrote: In general, the ideal licence would not need to be fully watertight in all jurisdictions, but only strong enough to provide a good deterrent in practice for most individuals and companies. What would you want to deter them from? Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Tom Hughes t...@... writes: But strong claims require strong evidence. To claim that CC-BY-SA is 'dreadful' requires, IMHO, evidence of real rather than theoretical cases where it's holding back the goal of free map data. You might tell me that the fence around my field is completely ineffective and I should upgrade to an electric fence, but I might ask on what particular occasion my livestock have managed to escape. If they haven't ever done so, perhaps the fence is working after all. How do you we propose we get this real evidence? Go our and beg somebody to steal our data so we can sue them and see if CC works? If nobody has stolen the data, then CC does 'work'. As you say, the aim is not to entrap people into violating the licence so the project can then sue them, but rather to deter them enough that they won't take the chance. It seems to be accomplishing that aim. So while accepting that CC has its flaws, I cannot agree that it is 'dreadful', 'useless' or 'completely ineffective'. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Wed, Oct 28, 2009 at 3:24 PM, Ed Avis e...@waniasset.com wrote:
Matt Amos zerebub...@... writes:
let's say, for a moment, that CC BY-SA definitely doesn't work and
isn't an option. what would you do? if you'd move to a new license,
which license?
I would prefer one which is CC-compatible,
which bits need to be CC-compatible? any produced work, i.e: tiles,
can be released under CC BY-SA with the ODbL, allowing maps to be
included in any CC-licensed work or site. does the database itself
need to be CC-compatible?
In my ideal ponies world the database itself would be CC-compatible, so
people could generate excerpts ('list of all pubs in Swindon') and include
that in CC works.
would the list of all pubs in Swindon be a database, or a produced
work? if it's included, formatted as a table perhaps, in a web page it
might be more appropriate to consider it a produced work. although, if
alphabetically ordered, it might meet the definition of a database...
for reference, the definition of a database in ODbL is:
A collection of material (the Contents) arranged in a systematic or
methodical way and individually accessible by electronic or other
means offered under the terms of this License.
That is good. To return to ponies for a moment, my licence would also
be quite clear that 'You do not have to accept this licence, since you
have not signed it.' So if there is no underlying legal reason why you
can't distribute the data, you are not required to accept any contract.
that would basically mean the license would be equivalent to PD/CC0 in
the US (where there are no database rights or copyrights on factual
data), wouldn't it? which would mean the share-alike parts only apply
in the EU?
cheers,
matt
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes:
In my ideal ponies world the database itself would be CC-compatible, so
people could generate excerpts ('list of all pubs in Swindon') and include
that in CC works.
would the list of all pubs in Swindon be a database, or a produced
work? if it's included, formatted as a table perhaps, in a web page it
might be more appropriate to consider it a produced work. although, if
alphabetically ordered, it might meet the definition of a database...
I'm not sure; the reason why it's good to allow the database itself to
be CC-distributed is to remove the uncertainty in these situations; if
you are distributing the result under CC-BY-SA, then it's permitted.
The distinction between database and produced work in the ODBL is interesting
but I don't know how much legal certainty can be placed on its interpretation.
(That would be more a question for those people-who-would-like-to-use-OSM-
but-are-afraid-of-CC-BY-SA.)
That is good. To return to ponies for a moment, my licence would also
be quite clear that 'You do not have to accept this licence, since you
have not signed it.' So if there is no underlying legal reason why you
can't distribute the data, you are not required to accept any contract.
that would basically mean the license would be equivalent to PD/CC0 in
the US (where there are no database rights or copyrights on factual
data), wouldn't it?
Assuming for the moment that OSM is purely factual and not creative,
nor has any element of judgement in how to tag facts about the world,
then yes. It would be freely distributable. I consider it a matter for
the US Congress and courts to decide what intellectual property rights
should be created for map data, and if their answer is 'none', then
OSM should fully support that enlightened policy.
which would mean the share-alike parts only apply in the EU?
Essentially, in any place where map data can be publicly seen (e.g. on a
website) but yet not freely copied (because of copyright or database rights),
the share-alike licence needs to neutralize those rights, to make sure they
are passed on to everyone who gets the data.
In places where map data is freely copyable anyway, no share-alike is needed.
If there are in-between situations where other laws could be used to distribute
the data under non-free terms, for example by trying to make everyone who
gets it agree to some restrictive contract, we need to assess how serious
those are in practice. (Trade secrets, mentioned as one possibility, don't
really cause a problem because they only work as long as the information
is kept secret.)
--
Ed Avis e...@waniasset.com
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: these sites are in non-compliance with the license http://wiki.openstreetmap.org/wiki/Lacking_proper_attribution Would switching to ODBL (or any licence) solve this particular problem? in any case, it's not useful to talk about people stealing the data - anyone can take a copy of the data without depriving us of the original copy. there are people who aren't in full compliance with the license, but in all of these cases i'm pretty sure it's an oversight more than it's deliberate. Yes. as a thought experiment, what would happen if i took the latest planet and put it up on my server (let's assume that both i and my server are in the US) with a PD license? Personally, I would say nothing; wait for someone to start distributing it under non-free terms and then contact them. If they made an honest mistake thinking the data really was in the public domain, they will stop; if not, it is just the same situation as someone taking the planet file and using it directly for some non-free distribution. So what then? One of the copyright holders would have to sue. To have grounds for copyright infringement he or she would need to show some 'spark' of creativity in the mapping work (at least according to http://en.wikipedia.org/wiki/Feist_Publications_v._Rural_Telephone_Service). The lively discussion on mailing lists and wikis of how to tag things, and the commonplace addition of 'logical' elements (such as intersection nodes) which do not exist in the real world, looks to me like prima facie evidence of such a 'spark' or 'minimal degree' of creativity. Even if the case is not cut and dried, there is certainly enough here to keep the lawyers busy for a while. Which, IMHO, is a strong enough deterrent for anyone thinking of misusing the data. Consider how much time and money the SCO - Linux case has taken up so far, on a far flimsier basis. One thing which weakens the case is that there is not a single copyright holder. Certainly copyright assignment to a single entity such as the OSMF would make it easier to sue. (As discussed earlier, even if the USA declines to recognize any copyright interest in OSM data, there are other jurisdictions, and few US companies would want to use data they had to keep strictly within the USA's borders or risk a lawsuit. I just don't believe it would happen.) i think we're agreed that all licenses have flaws. the sticking point seems to be that i'm of the opinion that CC's flaws are so great that the hassle of moving to a better license is the lesser evil. you appear to be of the opinion that the hassle is greater than any potential benefits. is that an accurate statement? That is fair; I might even go so far to say that with 50k contributors, a licence change is 'totally unworkable' and 'not an option', to borrow some of the phrases used earlier. However I would like to be pleasantly surprised about this. I'm also not a big fan of the ODBL, particularly the contract-law provisions, but it seems I'm very much in the minority on this. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... writes: let's assume some data are taken and modified and used to generate tiles. the ODbL would require that the modified data are made available, regardless of the license of the tiles. if the data were effectively-PD then there would be no requirement to make the modified data available (although i guess it would be allowable to trace the tiles, subject to the ToS of the site). likewise, CC BY-SA requires that the tiles are CC BY-SA, but requires nothing regarding the redistribution of the data. You're right. In a way this is like the source code requirement of copyleft licences for computer software. So it's one case where the ODBL gives a stronger share-alike than CC-BY-SA. (I would check, however, that this isn't going to slow the uptake of OSM by sites which want to draw their own maps showing houses for sale, etc. They would not be happy having to publish that additional data because it could be considered a Derived Database under the ODBL.) -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 10/28/09, Ed Avis e...@waniasset.com wrote: Matt Amos zerebub...@... writes: let's assume some data are taken and modified and used to generate tiles. the ODbL would require that the modified data are made available, regardless of the license of the tiles. if the data were effectively-PD then there would be no requirement to make the modified data available (although i guess it would be allowable to trace the tiles, subject to the ToS of the site). likewise, CC BY-SA requires that the tiles are CC BY-SA, but requires nothing regarding the redistribution of the data. You're right. In a way this is like the source code requirement of copyleft licences for computer software. So it's one case where the ODBL gives a stronger share-alike than CC-BY-SA. (I would check, however, that this isn't going to slow the uptake of OSM by sites which want to draw their own maps showing houses for sale, etc. They would not be happy having to publish that additional data because it could be considered a Derived Database under the ODBL.) 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. this is permissive enough to allow 3rd parties to use OSM data in their sites whilst still protecting the OSM data. in this respect it's like the LGPL more than the GPL. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 10/28/09, Ed Avis e...@waniasset.com wrote: Matt Amos zerebub...@... writes: these sites are in non-compliance with the license http://wiki.openstreetmap.org/wiki/Lacking_proper_attribution Would switching to ODBL (or any licence) solve this particular problem? quite possibly, since ODbL or PD would allow the tiles to be licensed in whichever way the renderer / cartographer sees fit. but certainly the ODbL makes the discussions of data licensing and produced work licensing orthogonal. as a thought experiment, what would happen if i took the latest planet and put it up on my server (let's assume that both i and my server are in the US) with a PD license? So what then? One of the copyright holders would have to sue. [...] Even if the case is not cut and dried, there is certainly enough here to keep the lawyers busy for a while. Which, IMHO, is a strong enough deterrent for anyone thinking of misusing the data. Consider how much time and money the SCO - Linux case has taken up so far, on a far flimsier basis. One thing which weakens the case is that there is not a single copyright holder. Certainly copyright assignment to a single entity such as the OSMF would make it easier to sue. which of the contributors out there has the funds to hire a lawyer in the US? copyright assignment has been discussed before, but i remember there were a lot of objections. it seems that copyright assignment wasn't very popular, despite that being the solution that the FSF have chosen for their software. (As discussed earlier, even if the USA declines to recognize any copyright interest in OSM data, there are other jurisdictions, and few US companies would want to use data they had to keep strictly within the USA's borders or risk a lawsuit. I just don't believe it would happen.) if you're suing an individual then you pretty much have to sue in the jurisdiction where that individual lives. large companies are easier, because they operate in several jurisdictions. i agree it's unlikely to happen, but it's better to have a more defensible legal position in case it does. i think we're agreed that all licenses have flaws. the sticking point seems to be that i'm of the opinion that CC's flaws are so great that the hassle of moving to a better license is the lesser evil. you appear to be of the opinion that the hassle is greater than any potential benefits. is that an accurate statement? That is fair; I might even go so far to say that with 50k contributors, a licence change is 'totally unworkable' and 'not an option', to borrow some of the phrases used earlier. However I would like to be pleasantly surprised about this. yep. i'd say that a license change is difficult, but that the alternative is worse; continuing with a license which can be described using those same phrases ;-) cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 10/28/09, Erik Johansson erjo...@gmail.com wrote: On Wed, Oct 28, 2009 at 9:08 PM, Matt Amos zerebub...@gmail.com 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
Frederik Ramm frede...@... writes: Indeed, there are in fact people who have gone on record saying they will stop contributing, and remove their previous contributions, if OSM were to become a PD project. But presumably nobody who will stop contributing if OSM continues to be licensed under Creative Commons share-alike terms? 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? If your question is: Has anybody ever used OSM data without regard to the CC-BY-SA license, been sued, and lost then the answer is, to my knowledge, no. That would be needed to prove that CC-BY-SA is effective in some country. But I feel that the burden of proof is the other way around. If you suggest dropping the existing licence and moving to a much more complicated new one, you need to show good evidence that the current licence is not working. When I look around I see a thriving OSM project, with no evidence that the current CC-BY-SA licence has held back people from contributing or led to leechers distributing their own OSM-derived data under unfree terms. (That said, there are some cases where the ODBL is more permissive, since AFAIK it allows rendered map images to be distributed under the terms you want.) The contract approach is primarily there because many believe the US to be such a country. That might be so, but again, I really doubt you can copy maps with impunity, otherwise we would be copying street names from Google. -- Ed Avis e...@waniasset.com ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On 27/10/09 11:04, Ed Avis wrote: Frederik Rammfrede...@... writes: 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? If your question is: Has anybody ever used OSM data without regard to the CC-BY-SA license, been sued, and lost then the answer is, to my knowledge, no. That would be needed to prove that CC-BY-SA is effective in some country. But I feel that the burden of proof is the other way around. If you suggest dropping the existing licence and moving to a much more complicated new one, you need to show good evidence that the current licence is not working. When I look around I see a thriving OSM project, with no evidence that the current CC-BY-SA licence has held back people from contributing or led to leechers distributing their own OSM-derived data under unfree terms. (That said, there are some cases where the ODBL is more permissive, since AFAIK it allows rendered map images to be distributed under the terms you want.) You've enumerated two possible failures modes for the current license but ignored one important one - whether people are being put off reusing our data because of uncertainty over the license. 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. The contract approach is primarily there because many believe the US to be such a country. That might be so, but again, I really doubt you can copy maps with impunity, otherwise we would be copying street names from Google. Ignoring the contract restrictions Google impose via their terms of use you mean? You see, other people do think contracts are needed ;-) Yes, I know that the whole question of whether those terms are binding in contract law given the lack of explicit acceptance is an open one but it certainly hasn't stopped them trying. Tom -- Tom Hughes (t...@compton.nu) http://www.compton.nu/ ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
On Tue, Oct 27, 2009 at 1:06 PM, Ed Avis e...@waniasset.com wrote:
Matt Amos zerebub...@... 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!)
we'll have to wait and see if they respond to the open letter. i
wouldn't want to put words in their mouths, but i suspect that ODbL
clears up a lot of the uncertainties with CC BY-SA.
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.')
ODbL does exactly this: it is a copyright and database rights license,
in addition to being a contract. the contractual part is necessary
because copyright + database rights almost certainly doesn't give
enough protection in most of the non-EU world, e.g: USA.
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.
ODbL optimises for a trade-off of simplicity and completeness. it has
been through several comment stages and, at each stage, people said it
was too complex. however, when you dig into any particular clause
you'll find that they are necessarily complex. i'm not saying it can't
be shortened - just that most of the unnecessary complexity has
already been removed. lawyers don't revel in complexity for
complexity's sake - they deal with it because it's an unavoidable part
of the legal system.
even if you were to optimise for size over coverage, you'd still want
it to work in at least the EU and USA. the EU needs the bits about
database rights, the USA needs the bits about contract. throw in the
bits about copyright in an attempt to cover that base as well; that's
the ODbL!
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.
you'd happily support distributing the data under a license which is
not likely to protect it?
cheers,
matt
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Hi, Matt Amos wrote: ODbL does exactly this: it is a copyright and database rights license, Can you explain this some more. I thought the copyright aspect was explicitly not covering the content (a fact that was actually critisised by a legal reviewer who found it too clumsy to have an extra license for the content). 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. you'd happily support distributing the data under a license which is not likely to protect it? I think he's asking for evidence of not likely. Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Matt Amos zerebub...@... 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.
--
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Hi, Ed Avis wrote: 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. Technically true, but in between the legal and the illegal we have the category legally possible but frowned upon, and OSMF would probably not like to be seen in that category ;-) 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. Indeed, there are in fact people who have gone on record saying they will stop contributing, and remove their previous contributions, if OSM were to become a PD project. 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? If your question is: Has anybody ever used OSM data without regard to the CC-BY-SA license, been sued, and lost then the answer is, to my knowledge, no. (I don't know if CC-BY-SA has ever been tested in court, even with regards to clearly copyrightable works.) 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'? The contract approach is primarily there because many believe the US to be such a country. 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. ODbL does not make an attempt to extend copyright to individual items in the database (saying that this must be governed by another license). As I understand it, the copyright aspect of ODbL only covers things like the data structure or schema etc., but not the contents. Bye Frederik -- Frederik Ramm ## eMail frede...@remote.org ## N49°00'09 E008°23'33 ___ legal-talk mailing list legal-talk@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
Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies
Frederik Ramm frede...@... 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 e...@waniasset.com ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
