[OSM-legal-talk] Progressing OSM to a new dataLicence regime

[Frederik Ramm]

Hi,

    I might be getting something wrong here, but Jordan's posting, to  
me, is the most convincing statement *against* the kind of license  
that the foundation has endorsed. It is a bit difficult for me to  
distinguish between the parts of the message where he says what HE  
thinks and where he says what the SC (science commons) people think,  
but that makes no difference to the weight of the arguments:

> The DbL/FIL is a "leaky ship" in that:

[...]

> -- Outside of Europe, you are likely to rely on contract and other  
> law (possibly unfair competition claims). Contract claims are one-to-
> one (in personam) and not one-against-everyone (in rem). This means
> that it is harder to enforce your claims against people who received
> the (uncopyrightable) data from someone who breached the contract.

[...] (paraphrasing SC here:)

> -- What copyright does and doesn't protect in a database is really  
> tricky, even for IP experts, and so making the public try to parse
> all the minute legal questions is overly burdensome and expensive
> both in money (lawyer fees), time (spent wondering about the rights),
> and lost opportunity (not using the database because of all the  
> hassle)

> -- Database rights legislation is bad policy and bad law and  
> shouldn't be used. See the European Commission's own review:

Let me add some exclamation marks here:

* BAD LAW
* SHOULD NOT BE USED.
* EUROPEAN COMMISSION DISCUSSING TO REPEAL IT

(and we are discussing to base our license on it?)

> -- Database rights are limited to Europe and so do not have  
> worldwide  
> applicability

This means that anyone in the US can kick our ass. It has been argued  
that some data "donations" like MASSGIS or AND would not have taken  
place if we had been PD because these people want attribution or have  
reservations about possible competitors using their data; but how  
will these people react if we choose a license that is completely  
toothless in a jurisdiction like the US? What will they say wen a  
seasoned IP lawyer like Jordan tells them: "Well you can give your  
data to OSM but you must know that there's basically nothing they can  
do if a US company breaches the license/contract"?

> --Contract creates a barrier of opportunity and transaction costs
> similar to copyright [above]. In addition, it is harder to enforce
> against third parties after breach and so offers only limited
> protection.

And I may add my pet issue that if someone breaches contract you are  
likely to be able to sue them for damages at most, which amount to  
the money you could have earned if the contract had not been  
breached, which is zero in our case.

> There has been some discussion of commercial data providers on this
> list.  I'm no expert in their practices, but they rely on:

And he goes on to completely destroy the OSMF position (without  
explicitly referring to it) that Richard Fairhurst recently  
summarized as "OSMF disagrees significantly with this assessment of a  
contractual approach. Commercial geodata (TeleAtlas, Navteq etc.) is  
protected this way.", arguing that we're in a very different  
situation from commercial providers.

And finally:

> The SC point is that all this sort of stuff can be a real pain, and
> isn't what you are really doing is wanting to create and manipulate
> factual data? Why spend all the time on this when the innovation
> happens in what you can do with the data, and not with trying to
> protect the data in the first place.

After reading this, I am more convinced than ever that the Open Data  
Commons DbL/FIL can NOT be the way forward for us. This is all just  
creating an enormous cloud of legalese, creating more uncertainties,  
and putting European users at a huge disadvantage compared to users  
in other jurisdictions.

How on earth did the Foundation come to recommend ODC DbL/FIL when  
even one of its two inventors has such an enormous list of caveats?

Everything that is being said about viral licenses and forcing users  
to do this and that and making sure that something else does not  
happen is just a pipe dream, and the whole license debate a huge  
waste of time. Factual data is always free, and the best we will ever  
be able to achieve is to set MORAL guidelines - we would like our  
users to do this and that, with a possible enforceable component in a  
small number of jurisdictions and for the time being.

Let us drop all this nonsense and concentrate on drawing up the moral  
guidelines - saying what we consider ok and what not - instead of  
fantasizing about having legal powers to enforce anything.

CC0 now!

Bye
Frederik

-- 
Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00.09' E008°23.33'