[OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

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 frederik at remote.org  ##  N49°00'09" E008°23'33"