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

[Peter Miller]

Where is the official input from the foundation to all this?

Where is the legal input to the conversation? My legal advice on  
copyright is at odds with what is proposed here. I wonder what the  
OSMF lawyer is saying.

Is anyone from the foundation going to engage with this list and say  
what is going on?

Board members at the last directors meeting were described as  
'confused' and 'perplexed'. Do they actually know what is happening or  
is SteveC playing this one single handed.

My lawyer asked me what the structure of the licence was in Octover. I  
relayed her questions to the foundation on the 24th Oct and didn't get  
a response. I asked the foundation again on the 10th Nov for a  
progress report on an answer. I sent an open letter to all the board  
members on the 24th Nov asking the same question prior to their  
meeting on the 25th. Finally I emailed SteveC asking for a copy of the  
new licence on the 3rd Dec and have only had an acknowledgement of  
receipt and no licence text and no answers.

Fi, In relation to the structure of the licence this is what our  
lawyer asked and this is one of the questions to which I am awaiting  
an answer. Personally In think our lawyer has got to wrong and that  
the intention is that the contributors do not licence their work to  
the foundation but licence it to everyone and the foundation purely  
brings it all together, but it is worrying that it is that unclear to  
another lawyer and also that I have not had any serious response from  
the foundation to the question.

Please don't ask me to interpret what the lawyer means, I am not a  
lawyer but I do know a good one who wants to help if we are able to.  
This is what she says:


 > > > 1)         Structure
 > > >
 > > > I have three broad concerns in this regard.
 > > >
 > > > Firstly, although the Draft Licence purports to licence rights in
 > > > the OSM to third parties, the grant of corresponding rights by
 > > > contributors to the OSM is inadequate. There is a reference in  
the
 > > > OSM login to the Creative Commons "Attribution - ShareAlike 3.0
 > > > Unported" terms, but these are a set of terms and conditions
 > > > relating to the licensing of a work (i.e. the OSM) to end users.
 > > > This simple reference is insufficient to provide the necessary
 > > > rights and protections needed in respect of the material  
supplied by
 > > > contributors to the OSM. This concerns not only the OSM  
Foundation
 > > > (as licensor), but also those who licence the use of the OSM
 > > > (licensees).
 > > >
 > > > I would advise that any contributors to the OSM should be made to
 > > > click through an agreement box (either each time they make a
 > > > contribution or when they register as members with a right to  
make
 > > > contributions), whereby they agree to a set of terms which
 > > > specifically relate to the making of contributions to the OSM,  
these
 > > > terms need to be easily accessed (this is usually done by means  
of a
 > > > dialogue box attached to the agreement box).
 > > >
 > > > Secondly, the nature of the current Draft Licence is far too
 > > > unspecific and runs a considerable risk of being unenforceable.  
For
 > > > example, the lack of any identification of the Licensor and the
 > > > constant reference to unspecified multiple additional/alternative
 > > > terms which may or may not apply.
 > > >
 > > > In order to be enforceable and to have the legal effect which is
 > > > intended a contract needs to have clarity as to certain basic
 > > > matters. For example, who the parties are, what the subject  
matter
 > > > of the contract is and what terms are incorporated into the
 > > > contract. In my view the current Draft Licence and related  
licensing
 > > > arrangements fall foul of all of these.
 > > >
 > > > I realize that the aim is to make the licensing arrangements as
 > > > flexible as possible; however, this can easily be achieved whilst
 > > > not compromising the value of the licence itself. I should also  
add
 > > > that an applicable law should be applied to the licence(s). The
 > > > attempt to make the licences subject to all national laws will  
only
 > > > lead to uncertainty and costly disputes and is un-necessary.
 > > >
 > > > Thirdly, whilst I appreciate that a number of different rights  
exist
 > > > in the OSM it would be preferable to deal with these all in a  
single
 > > > licence, rather than expecting licensees to enter into a number  
of
 > > > different agreements. I understand that the current intention  
is to
 > > > have individual licences relating respectively to the database,  
data
 > > > and facts. I may be missing something, but I can not envisage  
how a
 > > > licensee could use parts of the database in isolation from the  
data
 > > > or factual information which is contained in the OSM. To the
 > > > contrary, it would seem to be apparent that licensees are
 > > > predominately using the data contained in the OSM.
 > > >
 > > > I would note that the issue of dealing with multiple rights and
 > > > property is pertinent to a number of commercial agreements,
 > > > especially those involving software and technology. Normally, all
 > > > these aspects are dealt with in the same agreement. In  
particular,
 > > > the current Draft Licence is far too heavily reliant on Database
 > > > Right, this is relevant (although considering the method of the
 > > > construction of the OSM the extent of its relevance is open to
 > > > question) but other rights (such as copyright) are essential  
also to
 > > > the OSM.


Regards,



Peter


On 10 Dec 2008, at 21:47, Sunburned Surveyor wrote:

> 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?
>>
>> [snip........]
>>
>> Bye
>> Frederik
>>
>> --
>> Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09"  
>> E008°23'33"
>>
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