Re: [OSM-legal-talk] QA with a lawyer
On 12 May 2009, at 03:17, Peter Miller wrote: I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. Just to clarify, Peter, I spent some time this past Autumn reviewing the comments from your lawyer, for free, and sent to you privately. This spring, I've been focused on the new drafts of the ODbL / DbCL, and had less time to respond to specific comments, including from users who have been kind enough to share their legal advice with the community. As I also made clear in our email exchange, I'm happy to, within my resources, address issues that relate to the Open Data Commons project and not to you, Peter Miller, specifically. CC, for example, doesn't offer the level of detailed advice on use of their licenses on their site that you seek. My offer to meet with your lawyers (for a fee) was based on my opinion that there were several basic elements of open licensing in general, and the ODbL in particular, that your lawyer did not seem to understand. As such, I offered to meet with you and your counsel to go through them so that you both can have a better understanding of the issues present. Thanks again for your understanding. ~Jordan Mr. Jordan S Hatcher, JD, LLM jordan [at] opencontentlawyer dot com More details at: http://www.jordanhatcher.com Open Data at: http://www.opendatacommons.org ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Frederik Ramm schrieb: What I'm concerned with is mainly: How big is the risk of someone whitewashing our data from the contractual part of the ODbL, then introducing it to a large jurisdiction without something like a database directive (the US?), and thereby leaving us with only plain copyright which (correct me if I'm wrong) we choose not to exercise by applying the DbCL? The ODbL does include a copyright license, with the provision that The copyright licensed includes any individual elements of the Database, but does not cover the copyright over the Contents independent of this Database. As I understand it, that means you can use individual database entries or insubstantial parts under DbCL only but need an ODbL copyright license if you use more than that. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On 13/05/09 14:23, Frederik Ramm wrote: Sounds like: We have a honest desire to sue the shit out of you if you violate any of our 52 random rules but we will grudgingly refrain from doing so if laws in your jurisdiction should have the nerve of being against us. ;-) That's only if the rest of the licence sounds like We have a honest desire to sue the shit out of you if you violate any of our 52 random rules. And if you think that, then your problem would not be with the fair use clause. Gerv ___ legal-talk mailing list legal-t...@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On 13 May 2009, at 01:36, Matt Amos wrote: On Wed, May 13, 2009 at 1:15 AM, Frederik Ramm frede...@remote.org wrote: ...and Peter Miller's concerns are legit: If you are the licensor, then, under 4.4.d... Licensors may authorise a proxy to determine compatible licences under Section 4.4 a iii. If they do so, the authorised proxy's public statement of acceptance of a compatible licence grants You permission to use the compatible licence. ... you get to choose what the compatible licenses are, don't you? So I can take the planet file, add a node thereby creating a derivative database, publish it with me as the licensor, and under 4.4 d declare that I am myself the proxy who determines license compatibility, and one second later proclaim that the BSD style license is compatible with ODbL. Yay! Where can I sign up ;-) hmm... that does seem to be a problem. would it solve the problem if 4.4a iii were removed? would that prevent any reasonable use case, to not be able to distribute a derived database under anything other than ODbL or later versions similar in spirit? given that OSMF is the original licensor, holding the database rights, it wouldn't prevent OSMF choosing a new license. assuming, of course, that the terms of the contributor agreement are upheld regarding Firstly, is it reasonably to described the OSMF as the original licensor? Sure .. the OSMF is probably going to be the original licensor of the aggregation of individual OSM contributions to the main OSM dataset however on the wider stage this will not always be the case. There is both the situation were OSM bulk-imports some data from another source into OSM that is published as ODbL where the original data owner can not be contacted which I would hope would be possible, and then there is also the situation where a bit of OSM data is combined with a lot of other ODbL data into another dataset and the a bit of that dataset is combined again with another dataset and so on where the OSM element ends up as a very minor element of some other dataset. For example... an individual OSM contributor finds a useful dataset of the locations of ancient trees that someone has published based on their own research using ODbL. That OSM contributor should be able to import that into OSM without needing to get permission from the original author, in just the same way as one can use a CCBYSA photograph within a book without seeking permission. The author is just added to the list of major contributors to OSM in the 'notices' section. Then someone else publishes a global database of place-names database from OSM which includes all places from OSM together with a geocode and the boundary polygon for the place if we have one. This person actually publishes a whole load of different cuts of the data that people might find useful including world coastline, rivers etc (possibly this person is Frederik?!). They don't know which of the original bulk OSM contributions were used in each of these cuts so include the full list of OSM notices in each of these derivative databases. Then... someone uses the place-names database for a project they are doing somewhere in the world where they take a cut of the OSM place- names database for place-names for the area of interest and combine it with a cut of the OSM coastlines database and also with an ODbL database of sightings of butterflies and an ODbL dataset of weather events and publishes that as an ODbL dataset. This process continues and the OSM dataset is now far from the 'primary' dataset. Do we want to allowed this sort of thing? If not then are we not being 'non-free? If yes then we need to accept the implications of being a modest step in chain of data and we have to ask what controls on the ODbL that flows from OSM we can reasonably expect to maintain. Removing the right for anyone else to migrate to a new license in the situation that ODC is not able to do so would clearly be inappropriate, especially as we can't be sure that OSMF will still exist in 50 years! How do other organisations deal with this situation and can we learn from them? Regards, Peter voting, etc... cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On 12/05/09 09:37, Frederik Ramm wrote: Claiming copyright on something where you are not reasonably sure of actually having it is, in my eyes, a FUD maneouvre worthy of players like the OS, but something that we should make an attempt to steer clear of. The way of avoiding it seeming to be FUD is to have a clause like: Nothing in this licence attempts to restrict your rights under fair use or a similar doctrine. The GPL v3 has one: This License acknowledges your rights of fair use or other equivalent, as provided by copyright law. Gerv ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On Wed, May 13, 2009 at 7:36 AM, Peter Miller peter.mil...@itoworld.com wrote: There is both the situation were OSM bulk-imports some data from another source into OSM that is published as ODbL where the original data owner can not be contacted which I would hope would be possible, under the ODbL as proposed, i don't think it is possible. the contributor uploading the data would have to contact the source to obtain permission for OSMF to sub-license it. Removing the right for anyone else to migrate to a new license in the situation that ODC is not able to do so would clearly be inappropriate, especially as we can't be sure that OSMF will still exist in 50 years! these are the choices, as i see them: 1) licensees can use other licenses and may choose the meaning of compatible, in which case the loophole of re-licensing BSD appears. 2) licensees can use other licenses, but only those approved by the original Licensor (OSMF), in which case the data is non-forkable and arguably non-free. 3) licensees must use ODbL. like the GPL, once it is GPL-licensed only the original source may re-license it. How do other organisations deal with this situation and can we learn from them? the only similar situation i can think of is trolltech's licensing of Qt. but even then it was the GPL - they weren't allowing licensees to migrate to a new license. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Ulf Möller use...@... writes: Jukka Rahkonen schrieb: But what if OSMF is changing the license and somebody has managed to base some business on top of derived database licensed under the old ODbL license? Dou you lawyers say that it is a sound basis for building a business? For me it would feel more fair if the derivatives could keep the old license even if the mother OSM should update. Companies can then deside if they would rather take the new license, or to make a fork. According to section 9 of the ODbL, Releasing the Database under different licence terms or stopping the distribution of the Database will not withdraw this Licence (or any other licence that has been, or is required to be, granted under the terms of this Licence) So yes, companies would have that option. I should have been reading the license text. It is clearly written, so let there be forks. That is opening new interesting views. OSMF is still the major licensor of the derived database that decides to continue its living but remain in the old license version. Is OSMF after that effectively licensing data with two different licenses? And if the maintainer of the derived database has a community that continues to collect new data under ODbL 1.0 terms, and the main OSM has advanced to ODbL 1.1 or something, is it possible to exchange data between these two systems? OSM is the licensor of the ODbL 1.0 fork but cannot import the data itself, except by saying that ODbL 1.0 and the next license are compatible? Another question: If the major licensor stops distributing or making available the Database, can those who maintain derived databases immediately do the same? -Jukka Rahkonen- ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Gervase Markham wrote: The way of avoiding it seeming to be FUD is to have a clause like: Nothing in this licence attempts to restrict your rights under fair use or a similar doctrine. Sounds like: We have a honest desire to sue the shit out of you if you violate any of our 52 random rules but we will grudgingly refrain from doing so if laws in your jurisdiction should have the nerve of being against us. ;-) Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Jukka Rahkonen schrieb: And if the maintainer of the derived database has a community that continues to collect new data under ODbL 1.0 terms, and the main OSM has advanced to ODbL 1.1 or something, is it possible to exchange data between these two systems? According to RC1, you could use a later version of this Licence similar in spirit. We don't know what would be in the hypothetical ODbL 1.1, but I don't know of any licenses that would allow you to downgrade to a previous version (if a new license is released to fix problems with the old one, that option would kind of defeat the purpose of the release). Another question: If the major licensor stops distributing or making available the Database, can those who maintain derived databases immediately do the same? As I read RC1, they'll have to honor request for access to the database made to them while they were using it publicly, but that aside they can stop using the derived database at any time. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Matt Amos wrote: one of the things i'm gaining a better understanding of, having spoken with Clark, is that no license is ever fully watertight and we are highly unlikely to be able to defend all of our rights in all possible jurisdictions. I think we can all live with not being able to defend the rights in all jurisdictions. What I'm concerned with is mainly: How big is the risk of someone whitewashing our data from the contractual part of the ODbL, then introducing it to a large jurisdiction without something like a database directive (the US?), and thereby leaving us with only plain copyright which (correct me if I'm wrong) we choose not to exercise by applying the DbCL? As a commercial user, I am very interested in having the same set of rules binding my competitors in every country. Countries with economies so negligible that they don't subscribe to international IP law are of little interest to me in that regard (I am unlikely to face competition from companies in North Korea et al.), but if some kind of loophole would permit rogue US companies to use OSM data free of any restrictions while I, in Europe, am bound by them would be unsatisfactory. 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] QA with a lawyer
Hi, Frederik Ramm wrote: What I'm concerned with is mainly: How big is the risk of someone whitewashing our data from the contractual part of the ODbL, I should have explained: Such whitewashing would require someone to breach the contract by removing all licensing information and then passing on the data to a third party who then cannot become party to the contract. The important bit, to me, seems that said third party cannot be accused of any breach then. I have compared this to grey imports: Sony sells batch of TV sets to distributor with a contract saying only for distribution in Ukraine; distributor breaches contract and sells in Germany; if I now buy a TV set Sony has absolutely no legal right to demand that I return the TV or that I follow whatever contractual obligations they normally impose on German customers etc.; I am a perfectly legal Sony TV set user even if I *knew* that the distributor was breaching his contract. (This is something entirely different from buying stolen goods, because Germany and probably many other jurisdictions have special rules that make it impossible to become the rightful owner of something that was stolen in the first place.) 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] QA with a lawyer
On Tue, May 12, 2009 at 08:14:49AM +0200, Frederik Ramm wrote: What I'm concerned with is mainly: How big is the risk of someone whitewashing our data from the contractual part of the ODbL, then introducing it to a large jurisdiction without something like a database directive (the US?), and thereby leaving us with only plain copyright which (correct me if I'm wrong) we choose not to exercise by applying the DbCL? I’m (still) of the opinion that we shouldn’t just throw copyright to the wind in this way while some people (OS, for example) believe they can exercise copyright over elements of geodata, and not just database right. They might be right, or wrong. I hope they’re wrong, but it’s not very well tested. As a commercial user, I am very interested in having the same set of rules binding my competitors in every country. As a user, commercial or non‐commercial, I would prefer the same set of rights for both proprietary and free works, and for OSM not just to effectively waive those rights because we believe we have a database of simple facts and that simple facts should not be copyrightable (as I said, others don’t believe it and are willing to fight for their supposed rights). Countries with economies so negligible that they don't subscribe to international IP law are of little interest to me in that regard (I am unlikely to face competition from companies in North Korea et al.), but if some kind of loophole would permit rogue US companies to use OSM data free of any restrictions while I, in Europe, am bound by them would be unsatisfactory. Sticking to a form of share‐alike for the database contents would tighten the loophole where it is believed there are some rights to the contents, but would not completely get rid of it. Simon -- A complex system that works is invariably found to have evolved from a simple system that works.—John Gall signature.asc Description: Digital signature ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On 12 May 2009, at 04:13, Matt Amos wrote: On Tue, May 12, 2009 at 3:17 AM, Peter Miller peter.mil...@itoworld.com wrote: I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. i guess its hard for him when he's volunteering so much of his own time to answer all the questions put to him. Sure, and it makes your work here all the more important - thanks So... could you help me with a couple of the points raised by our lawyer at your next Q and A? The review of 0.9 is here: http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO we'd be happy to. lets discuss them now, so we've got a full understanding. I am particularly interested in a view of the following: Regarding point 3 could someone confirm that the Factual Information License has now been dumped in favour of the 'Database Contents License'? This is implied by the latest release candidate but hasn't been discussed on the list to my knowledge. It seems a lot more applicable but our lawyer hasn't reviewed it. my understanding is that the FIL has been renamed to the DbCL and has been considerably simplified. in our discussions we are no longer talking about the FIL. Ok, that is good (and it is also clear from the ODC website) however we did not reviewed it. We will look at it again. Point 9 - Governing Law - Lets assume someone in China creates a new work based on OSM and claims from Chinese law that it is not a substantial extract. That is then used by someone in Vietnam to combine it would something else and manipulate it which makes it more like the original OSM DB and then someone in the UK uses that DB. Can one procecute the final UK company using UK law or would one need to travel to Vietnam and China to do this given that some of the interpretations happened under their law? Clark agreed with your lawyer that having a choice of law is the normal done thing in contracts, and suggested that we would want to consider either US or UK law. apparently this choice of law doesn't have an effect on the IP rights and is mainly for interpreting the contractual parts of the license. in the situation you describe, it is my understanding that we would have a better chance prosecuting the final UK company under IP laws (e.g: copyright, database rights) on the original database. given the difference in IP laws in vietnam or china (i'm guessing) it would be easier to go after them based on the contractual parts of the license. The governing law issue is clearly an either/or. We either use the un- ported version, or a nominated jurisdiction, we can't do anything in the middle! Jordan is keen on un-ported one, our lawyer strongly advocates a nominated jurisdiction and so does does Clark. Clearly this is something we need to make a decision about. one of the things i'm gaining a better understanding of, having spoken with Clark, is that no license is ever fully watertight and we are highly unlikely to be able to defend all of our rights in all possible jurisdictions. in this regard i think we will have to strike a balance with practicality and license brevity. I agree it is all about shades of grey and we have to try to make it more black and more white but won't succeed totally. Point 13. Our lawyer states that the OSMF could change the license as they see fit at any time, and of they can then so can anyone else who publishes a derivative DB as far as I can see which would be alarming. Can you ask who can change the license and by how much. Our lawyer writes: Clauses 3.3 9.3 – The OSMF reserves the right to release the Database under different terms. It is not the current intention of the parties to permit exclusive use of the Database to any single person. However, this provision would permit the OSMF to withdraw the share alike and free access nature of the Database and even to sell it on commercial and exclusive terms. Likewise the OSMF expressly reserves the right to “stop distributing or making available the Database.” this was one of the questions in the write-up and was discussed again in the second call. my feeling is that this isn't an issue for the license, but instead forms part of the contribution agreement between contributors and the OSMF. Ulf did some work putting a three-point contribution agreement together and, as soon as its ready, i'm sure it will be posted here. However if the OSMF can change the license and given that it is a viral license then surely anyone else can also change the licensing of any derived database? Our lawyer mentions that the OSMF could
Re: [OSM-legal-talk] QA with a lawyer
On 12 May 2009, at 08:00, Simon Ward wrote: On Tue, May 12, 2009 at 08:14:49AM +0200, Frederik Ramm wrote: What I'm concerned with is mainly: How big is the risk of someone whitewashing our data from the contractual part of the ODbL, then introducing it to a large jurisdiction without something like a database directive (the US?), and thereby leaving us with only plain copyright which (correct me if I'm wrong) we choose not to exercise by applying the DbCL? I’m (still) of the opinion that we shouldn’t just throw copyright to the wind in this way while some people (OS, for example) believe they can exercise copyright over elements of geodata, and not just database right. They might be right, or wrong. I hope they’re wrong, but it’s not very well tested. +1 Our lawyer is very clear that copyright is a valid and important element in the set of rights we need to defend in relation to the OSM mapping data. As such the Content License should ensure that those rights are maintained. Regards, Peter ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Peter Miller wrote: However if the OSMF can change the license and given that it is a viral license then surely anyone else can also change the licensing of any derived database? Our lawyer mentions that the OSMF could 'sell it of commercial terms' or make it available to a single person. If this is true then why can't anyone else do the same. I really don't understand the legal mechanism being used for this and need to look at it more closely. I think this is a very interesting point and it does deserve a close look. As far as I understand it, the current plan is: * Mapper gives (perhaps licenses) his work to OSMF under a special agreement that basically says I grant OSMF the right to do whatever they want but they must publish this under ODbL or so. I understand this agreement is currently being worked on. * OSMF releases data under ODbL. Being the Licensor, OSMF has the right to authorise someone, possibly themselves, to determine which licenses are deemed compatible. * Licensees must release their derived databases under ODbL or a compatible license. This introduces two degrees of freedom of license choice; one is that OSMF can, at any time, change the list of compatible licenses, and the other is that ODC can, at any time, create new versions of the license which would then automatically be available to anyone using OSM content (without OSMF having to agree). Now Peter's interpretation is: Since the licensor has these powers, why does not Fred simply take the database, publish a derived version of it under ODbL and say I as the licensor hereby exercise my powers under section 4.4.d and decree that PD is a compatible license? The answer lies in 4.9 (you may not sublicense the database). We often sloppily say that if you make a derived work you must license it under ODbL, but this is not the way ODbL is intended to work. The idea is that the original licensor (OSMF) is the sole licensor throughout the chain of use; and as such, only OSMF has all the rights of the licensor (like defining the list of comptabile licenses). This is very different from CC-BY-SA, where each time you make a derived work and publish that, you are the licensee for upstream content and the licensor for your derived work. I have no idea if this concept of fixing the licensor to always be OSMF is workable at all. Is it used elsewhere, or is it an entirely new idea? Consider me taking the OSM database and adding a few bits here and there and then publishing the derived database. Now 4.9 says Each time You communicate the Database [...], the Licensor offers to the recipient a licence to the Database on the same terms and conditions as this Licence., so my users are granted ODbL rights by OSMF; but legally, OSMF can hardly be the licensor for the bits that I added, can they? Bye Frederik PS: Agree with Peter on the un-suitability of current OSMF legal framework to deal with such responsibility. Did you know that legally, the current OSMF board would not even have to invite their own chairman to their meetings as he is not resident in the UK? Read the Articles of Association and Companies Act for more hilarity. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, the OSMF LWG recently had a couple of calls with Clark Asay, who has generously agreed to give OSMF legal advice concerning the new license. i've attached the write up of the first of the calls Was that based on the 0.9 or 1.0 license? I am concerned because of Q: Is the process of creating a Produced Work restricted or affected by the ODbL in any way? Do any details of the process of creating a Produced Work need to be made Public? A: No. The process of creating a Produced Work does not need to be revealed, so any artistic interpretation involved does not have to be made available. The only requirement of the ODbL is the notice from section 4.3. and Q: How often does a Derived Database have to be made available? Must this be as often as my produced work or can I do this on a less frequent basis? How soon after the Produced Work is published must I make it available? A: Under the current version of the license, it isn't necessary to make the derived database available. It was my understanding that the above would have been true for 0.9, while the April 2008 ODbL draft and 1.0 would require making available the derivative database on which a produced work is built. Bye Frederik ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On Tue, May 12, 2009 at 10:13 AM, Frederik Ramm frede...@remote.org wrote: the OSMF LWG recently had a couple of calls with Clark Asay, who has generously agreed to give OSMF legal advice concerning the new license. i've attached the write up of the first of the calls Was that based on the 0.9 or 1.0 license? I am concerned because of Q: Is the process of creating a Produced Work restricted or affected by the ODbL in any way? Do any details of the process of creating a Produced Work need to be made Public? A: No. The process of creating a Produced Work does not need to be revealed, so any artistic interpretation involved does not have to be made available. The only requirement of the ODbL is the notice from section 4.3. the question here needs to be clarified - my bad. the intent of the question is whether anyone producing works would have to reveal their creative inputs, e.g: their mapnik/osmarender/kosmos style rules or ITOworld's custom renderer for OSM mapper. Q: How often does a Derived Database have to be made available? Must this be as often as my produced work or can I do this on a less frequent basis? How soon after the Produced Work is published must I make it available? A: Under the current version of the license, it isn't necessary to make the derived database available. It was my understanding that the above would have been true for 0.9, while the April 2008 ODbL draft and 1.0 would require making available the derivative database on which a produced work is built. this is a question we have open with Jordan/Rufus and we're very actively trying to get it resolved. it seems that there was some text dropped between the response of ODC on their wiki to the co-ment comments and the released version of 1.0-rc1. it is everyone's intent to have the SA requirements triggered when a produced work is publicly used, but clearly its unfair on Clark to ask him to answer a question based on the assumption of some text which isn't in the license in front of him. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
From: Frederik Ramm frede...@remote.org The answer lies in 4.9 (you may not sublicense the database). We often sloppily say that if you make a derived work you must license it under ODbL, but this is not the way ODbL is intended to work. The idea is that the original licensor (OSMF) is the sole licensor throughout the chain of use; and as such, only OSMF has all the rights of the licensor (like defining the list of comptabile licenses). This is very different from CC-BY-SA, where each time you make a derived work and publish that, you are the licensee for upstream content and the licensor for your derived work This *seems* like a big problem in the ODbL, but maybe I misundertand. Is the ODbL non-transitive?? What if another entity, say some National Mapping Agency, licenses their data as ODbL? It appears that if the NMA are the sole licensor, and the ODbL prevents transfer of the rights of sole licensor, then OSM could not assume those rights, and not import the NMA data. -Mikel___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Mikel Maron wrote: This *seems* like a big problem in the ODbL, but maybe I misundertand. Is the ODbL non-transitive?? It certainly is planned to be non-transitive. It feels a bit non-free at first because you will never ever get rid of the original licensor; but thinking about it, it's much the same as e.g. copyright law in Germany where strictly speaking no PD exists and whenever I release something into PD I have to say I grant a perpetual, irrevokable license to anyone to do whatever they please - the law does not allow me to actually relinquish my rights. What if another entity, say some National Mapping Agency, licenses their data as ODbL? It appears that if the NMA are the sole licensor, and the ODbL prevents transfer of the rights of sole licensor, then OSM could not assume those rights, and not import the NMA data. That's a difficult bit. In Matt's QA document it says Q: If Substantial Contributions are licensed to OSMF under the ODbL, does that impose any additional restrictions on the use of the OSM database or on the operations of the OSMF? A: Large contributions to the OSMF would come with the right to sub-license that data. So at least Clark's view is that to incorporate something else that is ODbL licensed into OSM, we would have to ask the rights owner to grant us extra permission to sub-license the data because ODbL alone is not enough for that. (Very different from CC-BY-SA where we could just take it, attribute him, and that's it.) 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] QA with a lawyer
Frederik Ramm frede...@... writes: Now Peter's interpretation is: Since the licensor has these powers, why does not Fred simply take the database, publish a derived version of it under ODbL and say I as the licensor hereby exercise my powers under section 4.4.d and decree that PD is a compatible license? The answer lies in 4.9 (you may not sublicense the database). We often sloppily say that if you make a derived work you must license it under ODbL, but this is not the way ODbL is intended to work. The idea is that the original licensor (OSMF) is the sole licensor throughout the chain of use; and as such, only OSMF has all the rights of the licensor (like defining the list of comptabile licenses). This is very different from CC-BY-SA, where each time you make a derived work and publish that, you are the licensee for upstream content and the licensor for your derived work. So why to discuss at all about publishing derived versions under ODbL if that is effectivy meaningless? The idea could then be written shortly: everything that is not either insubstantial or produced work is derived database and then the licensor is OSMF. This does not give a lot for those who maintain derived databases, despite the responsibility to make the derived database available, but perhaps it is what we want. Of course it is just the same if nothing is changing, the mother OSM database and derivatives will use the same well known license. But what if OSMF is changing the license and somebody has managed to base some business on top of derived database licensed under the old ODbL license? Dou you lawyers say that it is a sound basis for building a business? For me it would feel more fair if the derivatives could keep the old license even if the mother OSM should update. Companies can then deside if they would rather take the new license, or to make a fork. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Jukka Rahkonen wrote: But what if OSMF is changing the license and somebody has managed to base some business on top of derived database licensed under the old ODbL license? Well he can always continue the data he already has and which he was given under the old license. The license for *that* data cannot be changed later. OSMF can only change the license for future releases. Companies can then deside if they would rather take the new license, or to make a fork. The question of how to fork a hypothetical OpenStreetMap under ODbL is a very interesting one. Some people even say that something that cannot be forked does not deserve to be called free. I assume what would happen is this: You can fork OSM, continue to run it with your own contributors, but the license has to remain the ODbL as published by ODC. I am not clear about who would have the power to declare which licenses are deemed compatible to ODbL for your fork situation. Several possibilities: (a) the list of compatible licenses would be frozen at the time of fork, i.e. whatever had been declared compatible by OSMF (or whoever was authorized by OSMF do make that declaration) remains valid for your fork, forever. (b) OSMF's prerogative to change the list of compatible licenses affects your fork as well, so if your fork is so successful that OSMF's own project pales into insignificance, they'll make sure to change the list just to make your life difficult ;-) (c) you are the new licensor and you get to decide, so if you say BSD is compatible then you have freed the data from share-alike. (d) In a combination of (a) and (c), you might be allowed to reduce, but not extend, the list of compatible licenses at the time of fork; i.e. if OSMF has added some funny licenses you don't like, then you might be allowed to create a fork that is *not* compatible with them, but you cannot create a fork that is compatible with extra licenses the OSMF don't like. It sounds to me as if (a) or perhaps (d) were the only sane ways to deal with this but I cannot point to letters of the license that would say as much. Forks are not supported ;-) 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] QA with a lawyer
Jukka Rahkonen schrieb: But what if OSMF is changing the license and somebody has managed to base some business on top of derived database licensed under the old ODbL license? Dou you lawyers say that it is a sound basis for building a business? For me it would feel more fair if the derivatives could keep the old license even if the mother OSM should update. Companies can then deside if they would rather take the new license, or to make a fork. According to section 9 of the ODbL, Releasing the Database under different licence terms or stopping the distribution of the Database will not withdraw this Licence (or any other licence that has been, or is required to be, granted under the terms of this Licence) So yes, companies would have that option. ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Frederik Ramm schrieb: I have no idea if this concept of fixing the licensor to always be OSMF is workable at all. Is it used elsewhere, or is it an entirely new idea? A number of high-profile open source projects including GNU and Apache operate that way. The FSF will accept non-trivial changes to the GNU software only if you assign copyright to them. (Of course the license allows you to modify the software and distribute it on your own.) http://www.gnu.org/licenses/why-assign.html http://www.apache.org/licenses/icla.txt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
Hi, Ulf Möller wrote: I think the provisions of the GPL and ODbL are quite similar: Oops. If ODbL and GPL are as parallel to the GPL as you suggest, then: GPL v3: Sublicensing is not allowed - Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License. The above is for distributing the original, unmodified work, right? You may convey a work based on the Program, or the modifications to produce it from the Program, in the form of source code under the terms of section 4, provided that you also meet all of these conditions: ... You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. And this is for distributing a derived work. So the sublicensing is not allowed, in the GPL, *only* applies to distributing the original work, and as soon as you make a derived work, you must license... the work. If it is the same with ODbL, and I must say the similar wording makes this likely, then ODbL 1.0 RC1: You may not sublicense the Database. Each time You communicate the Database ... to anyone else in any way, the Licensor offers to the recipient a licence to the Database on the same terms and conditions as this Licence. The you must not sublicense is really only for distribution of the unmodified product, as in the GPL; and Any Derivative Database that You Publicly Use must be only under the terms of: i. This Licence; ii. A later version of this Licence similar in spirit to this Licence; or iii. A compatible licence. If You license the Derivative Database under one of the licences mentioned in (iii), You must comply with the terms of that licence. This would then say that if it comes to distributing a derived work, you are indeed the licensor. The ODbL even contains the wording If you license the Derivative Database, and this means that you are the licensor. Which means that everything I said before in this thread is rubbish, and Peter Miller's concerns are legit: If you are the licensor, then, under 4.4.d... Licensors may authorise a proxy to determine compatible licences under Section 4.4 a iii. If they do so, the authorised proxy's public statement of acceptance of a compatible licence grants You permission to use the compatible licence. ... you get to choose what the compatible licenses are, don't you? So I can take the planet file, add a node thereby creating a derivative database, publish it with me as the licensor, and under 4.4 d declare that I am myself the proxy who determines license compatibility, and one second later proclaim that the BSD style license is compatible with ODbL. Yay! Where can I sign up ;-) 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] QA with a lawyer
On Wed, May 13, 2009 at 1:15 AM, Frederik Ramm frede...@remote.org wrote: ...and Peter Miller's concerns are legit: If you are the licensor, then, under 4.4.d... Licensors may authorise a proxy to determine compatible licences under Section 4.4 a iii. If they do so, the authorised proxy's public statement of acceptance of a compatible licence grants You permission to use the compatible licence. ... you get to choose what the compatible licenses are, don't you? So I can take the planet file, add a node thereby creating a derivative database, publish it with me as the licensor, and under 4.4 d declare that I am myself the proxy who determines license compatibility, and one second later proclaim that the BSD style license is compatible with ODbL. Yay! Where can I sign up ;-) hmm... that does seem to be a problem. would it solve the problem if 4.4a iii were removed? would that prevent any reasonable use case, to not be able to distribute a derived database under anything other than ODbL or later versions similar in spirit? given that OSMF is the original licensor, holding the database rights, it wouldn't prevent OSMF choosing a new license. assuming, of course, that the terms of the contributor agreement are upheld regarding voting, etc... cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] QA with a lawyer
the OSMF LWG recently had a couple of calls with Clark Asay, who has generously agreed to give OSMF legal advice concerning the new license. i've attached the write up of the first of the calls, in which we went over a series of short questions that grant and i had previously extracted from ulf's compendium of use cases and open issues. clark had lots of useful thoughts which are well worth reading and discussing here. the most important issues are highlighted in yellow, some of which require community input to resolve. we had the second call earlier today and we'll be writing up the results of that real soon now. cheers, matt Q_A_Session_with_Clark_Asay.pdf Description: Adobe PDF document ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] QA with a lawyer
On 11 May 2009, at 23:43, Matt Amos wrote: the OSMF LWG recently had a couple of calls with Clark Asay, who has generously agreed to give OSMF legal advice concerning the new license. i've attached the write up of the first of the calls, in which we went over a series of short questions that grant and i had previously extracted from ulf's compendium of use cases and open issues. clark had lots of useful thoughts which are well worth reading and discussing here. the most important issues are highlighted in yellow, some of which require community input to resolve. we had the second call earlier today and we'll be writing up the results of that real soon now. Very useful Matt. I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. So... could you help me with a couple of the points raised by our lawyer at your next Q and A? The review of 0.9 is here: http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO I am particularly interested in a view of the following: Regarding point 3 could someone confirm that the Factual Information License has now been dumped in favour of the 'Database Contents License'? This is implied by the latest release candidate but hasn't been discussed on the list to my knowledge. It seems a lot more applicable but our lawyer hasn't reviewed it. Point 9 - Governing Law - Lets assume someone in China creates a new work based on OSM and claims from Chinese law that it is not a substantial extract. That is then used by someone in Vietnam to combine it would something else and manipulate it which makes it more like the original OSM DB and then someone in the UK uses that DB. Can one procecute the final UK company using UK law or would one need to travel to Vietnam and China to do this given that some of the interpretations happened under their law? Point 13. Our lawyer states that the OSMF could change the license as they see fit at any time, and of they can then so can anyone else who publishes a derivative DB as far as I can see which would be alarming. Can you ask who can change the license and by how much. Our lawyer writes: Clauses 3.3 9.3 – The OSMF reserves the right to release the Database under different terms. It is not the current intention of the parties to permit exclusive use of the Database to any single person. However, this provision would permit the OSMF to withdraw the share alike and free access nature of the Database and even to sell it on commercial and exclusive terms. Likewise the OSMF expressly reserves the right to “stop distributing or making available the Database.” Thanks, Peter cheers, matt Q_A_Session_with_Clark_Asay .pdf___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] QA with a lawyer
On Tue, May 12, 2009 at 3:17 AM, Peter Miller peter.mil...@itoworld.com wrote: I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. i guess its hard for him when he's volunteering so much of his own time to answer all the questions put to him. So... could you help me with a couple of the points raised by our lawyer at your next Q and A? The review of 0.9 is here: http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO we'd be happy to. lets discuss them now, so we've got a full understanding. I am particularly interested in a view of the following: Regarding point 3 could someone confirm that the Factual Information License has now been dumped in favour of the 'Database Contents License'? This is implied by the latest release candidate but hasn't been discussed on the list to my knowledge. It seems a lot more applicable but our lawyer hasn't reviewed it. my understanding is that the FIL has been renamed to the DbCL and has been considerably simplified. in our discussions we are no longer talking about the FIL. Point 9 - Governing Law - Lets assume someone in China creates a new work based on OSM and claims from Chinese law that it is not a substantial extract. That is then used by someone in Vietnam to combine it would something else and manipulate it which makes it more like the original OSM DB and then someone in the UK uses that DB. Can one procecute the final UK company using UK law or would one need to travel to Vietnam and China to do this given that some of the interpretations happened under their law? Clark agreed with your lawyer that having a choice of law is the normal done thing in contracts, and suggested that we would want to consider either US or UK law. apparently this choice of law doesn't have an effect on the IP rights and is mainly for interpreting the contractual parts of the license. in the situation you describe, it is my understanding that we would have a better chance prosecuting the final UK company under IP laws (e.g: copyright, database rights) on the original database. given the difference in IP laws in vietnam or china (i'm guessing) it would be easier to go after them based on the contractual parts of the license. one of the things i'm gaining a better understanding of, having spoken with Clark, is that no license is ever fully watertight and we are highly unlikely to be able to defend all of our rights in all possible jurisdictions. in this regard i think we will have to strike a balance with practicality and license brevity. Point 13. Our lawyer states that the OSMF could change the license as they see fit at any time, and of they can then so can anyone else who publishes a derivative DB as far as I can see which would be alarming. Can you ask who can change the license and by how much. Our lawyer writes: Clauses 3.3 9.3 – The OSMF reserves the right to release the Database under different terms. It is not the current intention of the parties to permit exclusive use of the Database to any single person. However, this provision would permit the OSMF to withdraw the share alike and free access nature of the Database and even to sell it on commercial and exclusive terms. Likewise the OSMF expressly reserves the right to “stop distributing or making available the Database.” this was one of the questions in the write-up and was discussed again in the second call. my feeling is that this isn't an issue for the license, but instead forms part of the contribution agreement between contributors and the OSMF. Ulf did some work putting a three-point contribution agreement together and, as soon as its ready, i'm sure it will be posted here. the contribution agreement is something that we'll be working on in the LWG and we'd like to have your input. discussions up to now have focussed on the idea of the OSMF being required to hold a membership vote before being able to change the license, although we haven't yet gone into details of the mechanics (i.e: majorities, etc...) i'm sure you understand the need for the OSMF to reserve the right to discontinue hosting the database, since hosting and distributing the database requires a great deal of resources. while these resources are currently available, it seems unwise for OSMF to legally commit to providing them forever. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
