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

[Tom Hughes]

In message <BFF7BF64-3F1F-4A2F-A097-961DBCCA0188 at remote.org>
        Frederik Ramm <frederik at remote.org> wrote:

> Hi,
>
>> -- 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"?

Which is why the license also uses contract to help where database
right is not available.

>> --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.

I believe that is not true everywhere - in Europe that is generally
the case but the US allows for punitive damages as well as compensatory
damages I think.

> 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.

The problem is that we know that if we go down that route we will
almost certainly loose (a) a lot of contributors and (b) a lot of
existing data.

We know this because a number of people have stood up and said they
will withdraw their data if no viral style protection is offered to
ensure it stays free.

Tom

-- 
Tom Hughes (tom at compton.nu)
http://www.compton.nu/