[OSM-legal-talk] ODbL: Who is the licensor / whose "database" is it?

[Sunburned Surveyor]

Although option 3 as discussed above is likely the most legally fuzzy,
it is also likely the most palatable to contributors.

Landon

On Wed, Dec 10, 2008 at 1:41 PM, Frederik Ramm <frederik at remote.org> wrote:
> Hi,
>
>   there is another open question concerning the implementation of the
> planned ODbL. To recap, the ODbL/FDL Duo will acknowledge that the
> individual data items are not subject to copyright, but as a database
> they are protected.
>
> The question is: Where is the database created and who is, therefore,
> the licensor?
>
> In our current (faulty) assumption about CC-BY-SA, we say that a
> copyrighted work is created by the mapper who then licenses it under
> CC-BY-SA and allows OpenStreetMap (as well as anybody else) to use it.
> OSM does not have a special position in this construct; OSM is just one
> of many potential users of that mapper's CC-BY-SA licensed data. OSM
> collects and merges many CC-BY-SA licensed bits of data but so might
> anybody else. Ownership and copyright remains with the original author.
>
> In the future, legal protection will only arise from the fact that the
> data is part of a larger whole, where non-trivial work has been done to
> create that "whole". The database directive assigns ownership of the
> "whole" to whoever has done the work to assemble and arrange the data in
> the database.
>
> I can see three possible interpretations:
>
> 1. Each mapper has his own database, of which he makes a copy available
> to OSM under ODbL which then creates a derived database. In that case,
> of course, each mapper is a licensor, and OSM is a giant work derived
> from many individual databases.
>
> 2. Each mapper only has an unprotected pile of data items which he
> uploads to OSM without any license; only by incorporating it into OSM is
> the database created, and the OSM Foundation as the operator of the
> servers on which all this happens is the creator of the database. OSMF
> is the sole licensor of OSM data, all database directive protection
> applies only to OSMF.
>
> 3. Each mapper only has an unprotected pile of data items which he
> uploads to OSM without any licens; only by incorporating it into OSM is
> the database created. In uploading his data, the mapper becomes a
> "co-creator" of the central database and he is entitled to protection
> from the database directive; however he has agreed not to exercise any
> rights arising from this "co-creatorship" as long as OSMF distributes
> the resulting database under ODbL.
>
> I am not sure if this is perfectly clear to everyone but these three
> options are vastly different and probably each carries along with it a
> wholly different bag of legal implications. Option 3, especially, would
> require a hitherto completely undiscussed sort of legal contract between
> the mapper and the operator of the database servers ("I help you to
> create this big database, and I agree to do X/not to do Y as long as you
> publish the database under ODbL"). Option 2 does not have such a
> contract between the mapper and the server operator, but basically
> assigns all database directive protection to the server operator (think
> the "foundation taken over by Navteq carpetbaggers, rescinds ODbL, goes
> PD" scenario). Option 1 does not have such a contract either, relying on
> the ODbL itself instead, but this only works if whatever the mapper
> hacks into JOSM/Potlatch can be construed to be a database in itself.
>
> I'm sure there are also options 1a, 2b, or 4, but I couldn't think of
> them right now.
>
> In my eyes this is an important topic to think about BEFORE selecting a
> license that is based on the database directive, not something that
> should be left for later as an "implementation detail".
>
> Bye
> Frederik
>
> --
> Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09" E008°23'33"
>
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