[OSM-legal-talk] [OSM-dev] Bittorrent

[Russ Nelson]

On Apr 19, 2009, at 10:41 AM, Frederik Ramm wrote:
>
> 3. Headache comes from places without database rights (like the US)
> where anyone getting hold of our data could simply do anything with  
> it.

Except that the US also has a compilation copyright.  The individual  
facts may not be copyrighted, but our choice of which facts to include  
in OSM and which to not include is copyrightable.  And because of the  
Berne Convention, where everything is born copyrighted, we *do* have a  
compilation copyright.

> Even for those who think that our data should be put in the Public
> Domain anyway (e.g. me), this is undesirable because it would create a
> wholly different situation in the US than we have in Europe.

Well, some people question whether under US law, there is any path to  
the public domain short of copyright expiration.  I think too much is  
made of the distinction between the status of the public domain in the  
US versus Europe versus anywhere else.  The salient points are:
   o In order to enforce copyright, you have to go before a court.
   o If you've renounced copyright, you're going to have a hard time  
convincing a judge to enforce your copyright.

> 4. Because of this, the ODbL tries to be a contract and a license at  
> the
> same time, forcing users in places like the US to adhere to our
> "license" through contract law.

LOTS of people believe licenses to be contracts, so I'm not sure  
you're speaking accurately.  In particular, in order to disclaim  
warranty (which licenses like the GPL do), you need a contract.  You  
can look at a license as if it were a unilateral grant of rights, but  
that doesn't give you a warranty disclaimer.

> 5. It is somewhat unclear, and one of the questions posed on
> http://wiki.openstreetmap.org/wiki/Open_Data_License/Open_Issues, what
> legal consequences would arise from some "bad guy" stripping away the
> contract information and republishing our data in a non-database
> country; the worst case for us would probably be if this would lead to
> third parties being able to use our data totally unrestricted with
> impunity, even if they know the data comes from OSM.

So, worst case is that the data would be in the public domain.   Well,  
I've been saying for a while that the MOST IMPORTANT legal agreement  
in open source is NOT the license you present to the recipients of  
your works, but instead the contract you execute with your contributors.

Don't forget that you can't claim copyright on something in the public  
domain.  You can only claim copyright on a creative work; if you  
didn't create it, you can't claim copyright.  So if somebody takes a  
planet dump, imports it into their own database, and makes five edits  
to it, they only have a copyright on those five edits (and if they're  
facts about the world, they have the same problem we have).

With my nearly 11 years of experience as the licensing VP at the Open  
Source Initiative, I think we're worrying about nothing.  Public  
domain, or if we simply MUST threaten to sue people, claim a database  
right where they exist, and a compilation copyright where they don't.

--
Russ Nelson - http://community.cloudmade.com/blog - http://wiki.openstreetmap.org/wiki/User:RussNelson
russ at cloudmade.com - Twitter: Russ_OSM - http://openstreetmap.org/user/RussNelson