[OSM-legal-talk] Privacy and Terms

[Russ Nelson]

On Jun 24, 2009, at 4:31 PM, Frederik Ramm wrote:
>
> I could probably find something idiotic in every paragraph if I put my
> mind to it but I'd rather do something else.

Some of the stuff is there simply by virtue of having any terms of use  
at all, e.g. Assignment, Survival, or Claims.

Some of the stuff is there because of stupid-ass legislation which  
violates various laws (e.g. if the site is going to be used by  
underaged children (which of course it will) we would have to treat  
them differently (at least according to US law) except of course we  
have no freaking idea how old they are, so we just tell everyone to  
lie and pretend that they're of-age which of course breaks the law  
that you shouldn't induce peaceful honest people to lie.)

Some of the stuff is there to help enforce the database license.  If  
we had a license that didn't give us the occasion to sue anybody, we  
wouldn't need terms like that, but in fact we DO plan to sue SOMEBODY,  
sooner or later.  And it's only reasonable to then be able to say in  
court "Harrrrrrrrumph, you used our website on these various  
occasions; continued use implies that you did IN FACT agree to abide  
by our distribution license."  You can argue whether the terms are  
effective, but you can't argue against their existence in principle.

Some of the stuff is there to make sure that we have the right to  
redistribute contributions to OSM.  This is important and useful.

Removal of content is a good term to have in place.  I get mailing  
list subscribers asking me to remove their email address from the  
archives.  I ignore them, thinking "Too late!  Think before you  
email!"  But if someone comes at me with a legal threat, and I have no  
contributor's agrement to point them to, I'm pretty-much going to have  
no choice but to remove their address.

Prohibited uses just gives us the right to kick fucking assholes in  
the butt.  Sure, self-defense is the right of all civilized people,  
but remember this: a judge can ALWAYS get up on the wrong side of the  
bed and rule incorrectly.  If you have verbiage in your T&C that lets  
you point out, in appeal, excuse me, but we *did* tell them exactly  
what would happen if they did that, and we did it, so they have no  
reason to prevail in a judgement.

And if you think that you're safe just because you live in Europe,  
consider that the OSMF provides services in the USA.  It can say to  
the judge "we don't operate in the US; this person has no opportunity  
to sue us", but who knows what might happen in the future?  Maybe one  
of the principals of the OSMF might fly through the US, or move to the  
US, or start a US company.

--
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