jochen at remote.org
Fri Oct 17 19:51:39 BST 2008
On Fri, Oct 17, 2008 at 02:27:44PM +0100, Richard Fairhurst wrote:
> > I see the "click-through" is still in! Doesn't anybody else think this
> > is completely insane? An Open License with a click through?
> > [...]
> > If we can't get rid of the click-through, the license is, in my opinion,
> > absolutely not acceptible.
> It's worth clarifying that the click-through is not something that's
> expressly specified in "the license" (i.e. ODBL).
> ODBL (not unusually) works through copyright, database right, and
> contract. Where geodata is protected by copyright law and database
> right law, it's all straightforward.
> However, in jurisdictions where copyright and database right may not
> apply to geodata, the enforcement has to be via contract. A
> click-through is one way in which a user can agree to a contract. If
> there is no way for the user to agree (or otherwise), or so it's
> argued, there can be no contract.
> So "if we can't get rid of the click-through" is not the question. We
> can get rid of whatever we want. It's for the community to decide
> whether the hassle of a click-through outweighs the likelihood that
> the contract would be upheld. I make no comment either way. :)
But the layer should make a comment. Its his job to tell us, what will
work and what will not work. If we create a license that is not
enforcable, why bother?
As far as I can tell the situation is as follows:
* Protection through copyright we already have in the current license
(arguably, but not going to be better in new one)
* Protection through European database directive is only valid if both
parties are in the EU (so doesn't make sense for us)
* Protection through contract law requires click-through (which nobody
So this does put us back to square one, doesn't it?
If we go the other way and use the click-through, we can use contract
law, which means we don't have to fall back on either copyright or the
database directive, because if there is an actual contract between two
people we can put in anything anyway? Problem is, we can't, because
then if person A takes OSM data and gives it to person B without making
B sign the contract first, B is not bound by the contract and can do
whatever he wants. So even if we use the dreaded click-though the data
will leak sooner or later, intentionally or not, and the protection
through contract law is gone.
So again, back to square one...
If there is some fault in my argument, can somebody explain that to me?
Jochen Topf jochen at remote.org http://www.remote.org/jochen/ +49-721-388298
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