[OSM-legal-talk] Fwd: [ORG-discuss] Open Data Commons draft licence

[rob at robmyers.org]

Quoting Richard Fairhurst <richard at systemeD.net>:

> Legally it looks very cleverly drafted (but then, IANAL) - interested
> to note that Charlotte Waelde is involved. And it seems to suit OSM
> very well indeed, addressing many of the issues we've had.
> Derivative/collective and database right/copyright are both very
> clearly addressed, and at heart, it's still a BY-SA licence. Though
> there isn't much specific on attribution, the split into the two
> licences effectively answers that AFAICT.
>
> What does anyone else think?

I Am Not A Lawyer, This Is Not Legal Advice.

The Open Database Licence looks cool.

I have some comments on it. I'll pop these on the blog as well.

General
-------

If I render an image from licenced data (e.g. a map from OSM's street  
data) how does the copyright on that work interact with the licence on  
the data? Can such a derivative work be relicenced, for example under  
BY-SA or as a proprietary work?

Non-DB-Right Contract
---------------------

"for circumstances and territories in which copyright and database  
rights do not apply, the Open Data Commons is also an agreement in  
contract for you to act in certain ways in return for accessing this  
database"

IANAL so I would be interested to know more about the basis for this.  
Are there precedents that show that it would be enforceable?

Waiver Of Sharealike
--------------------

The waiver of sharealike in 4.5 is interesting and fits many of the  
debates that have taken place within OSM.

4.5.a is unclear. I assume it is simply clarifying the scope of  
copyleft and aggregation.

4.5.b is a "mash up" clause. So this answers people's concerns about  
mash-ups, which I think is a good thing.

There are possibly two problems with this though.

The first is that other data must come from "more than one source". So  
I cannot just add (e.g.) telephone numbers to locations on OSM data, I  
must add telephone numbers and postcodes.

The second is that as written it is easy to create a query system  
which will allow the entire database to be used in a non-free way. I  
can provide all of OSM's data through a query interface as long as I  
provide two bits of extra data with each query. This creates an "ASP  
Hole", "licence laundering" or "backdoor" problem in the licence.

4.5.c mirrors's the GPL's internal use provisions. This is probably a  
good thing.

I think that b and c would answer many people's use case concerns  
about copylefted geodata. But as currently written b both disallows  
the simplest mashups and allows the licence as a whole to be  
effectively circumvented.

Parallel Distribution Language
------------------------------

4.6 contains the controvercial "parallel distribution" language that  
was not included in the 3.0 Creative Commons Licences revision. I am  
not sure that it is any better for data. It might be better if the  
licence allows private DRM-encumbering as the CC licences appear to.

So rather than allowing DRM-based distribution in 4.6, 4.5.c should  
allow people to add DRM or access controls in private or within  
organizations (where it is their problem and nobody else's). This  
would allow use of licensed data by VLEs and uploading of licensed  
data to TomTom systems for example.

Moral Rights
------------

This is the opposite to Creative Commons's approach. Would a promise  
not to assert moral rights be binding in e.g. Germany or would it be  
regarded as unconscionable?

Fair Dealing
------------

Fair Use is the international term I believe, although I did hassle CC  
to mention Fair Dealing as well in the International CC 3.0 licences.

- Rob.