<div dir="ltr"><div dir="ltr"><br></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Thu, Oct 3, 2019 at 1:53 AM Christoph Hormann <<a href="mailto:chris_hormann@gmx.de">chris_hormann@gmx.de</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">On Wednesday 02 October 2019, Kathleen Lu wrote:<br>
> That use may or may not be infringing of third party rights (either<br>
> copyright or database), but it is not a legal requirement that a<br>
> person must either obtain a sublicense passed through OSMF or not<br>
> involve OSMF at all (even physically). For example, suppose that a<br>
> user extracted only the data associated with the TIGER import in the<br>
> US from the OSM database and discarded the rest. That data is public<br>
> domain. It's inclusion in OSM did not change the fact that no<br>
> rightsholder has any rights to it. There is no legal requirement that<br>
> a user must go to the original TIGER source. The user does not<br>
<br>
It seems to me that we have a very fundamental difference in<br>
understanding of the practical implications of database law or the<br>
fundamental structure of the OSM data.<br>
<br>
I find your idea of a persistent nature of PD in the way that PD data<br>
retains its identity as a data set free of any rights when being<br>
processed and combined with other data intriguing. It would for example<br>
mean that i could probably use a lot of data products generated from PD<br>
data (think for example of Google or Mapbox satellite image layers at<br>
low zoom levels) as a data source (in a similar way as your<br>
hypothetical TIGER data user could use OSM as a source for TIGER data)<br>
without these companies being able to prevent me from doing that on<br>
legal grounds because the data in that interpretation continues to be<br>
PD data.<br>
<br>
In other words: I don't think this interpretation works and i also<br>
don't think it would be in the interest of the typical OSM data user<br>
for this interpretation to work.<br></blockquote><div><br></div><div>In my view, the bulk of case law supports the view of the persistence of the PD, regardless of medium. Most of the case law I am familiar with on this topic is regarding photographic reproductions, see <a href="https://www.jcms-journal.com/articles/10.5334/jcms.1021217/">https://www.jcms-journal.com/articles/10.5334/jcms.1021217/</a>, but I see no reason to distinguish data, which has thinner copyright protection in general. <br></div><div>As Martin already noted, Google or Mapbox could possibly, through their terms of service, contractually forbid you from using their systems to systematically ping for PD data (e.g., NASA imagery layers), especially on the grounds that your use places a burden on the service, but they could not use *IP* claims to stop you. (Note that even for systematic uses, there are limits to what could be claimed, see <a href="https://law.justia.com/cases/federal/appellate-courts/ca9/17-16783/17-16783-2019-09-09.html">https://law.justia.com/cases/federal/appellate-courts/ca9/17-16783/17-16783-2019-09-09.html</a>) For non-systematic use of the systems, it is doubtful that they would even try. This is of course something that can differ jurisdiction to jurisdiction, as copyright and database protection laws are territorial.<br></div><div><br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<br>
> > > In any event, why would there be any "damage for the OSMF" in any<br>
> > > circumstance, in the hypothetical case of a contributor who did<br>
> > > not intend PD or did not have authority to contributo PD vs a<br>
> > > data user?<br>
> ><br>
> > I do not quite understand that question - could you rephrase?<br>
><br>
> You said that "So unless a mapper has kept a<br>
> separate record of their contributions before uploading to the OSMF<br>
> servers and licensed that to the data user or when we are talking<br>
> about a PD data import i see no basis for the claim for there to be<br>
> less damage for the OSMF in a court case about use in violation of<br>
> the ODbL." My questions are: Why would there be any damage for OSMF<br>
> at all? Why would OSMF be a party to the case?<br>
<br>
I can't follow your line of thought now. You were the one to claim<br>
that when a data use in violation of the ODbL involves data mapped by a<br>
mapper who has checked the PD box that this might have an effect on<br>
damages the OSMF could claim ("it would lower the possible damages that<br>
could be claimed").<br>
<br>
My statement was not for there to be any specific kind of damage that<br>
could be claimed - it was that i think there is no basis for assuming<br>
there to be a difference in that regard between a specific subset of<br>
OSM data being entered by a mapper with the PD statement or not.<br>
<br></blockquote><div>You misinterpreted my statement. When I said the PD statement could "lower the possible damages that could be claimed", I did not say "by OSMF". I was referring to the possible damages that might be claimed by a data contributor that had inadvertently checked the PD box. Whether one has a belief as to the licensed or otherwise noninfringing status of a use has an impact on the damages that might be awarded, at least in some jurisdictions. </div></div></div>