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

Wed Feb 6 11:29:27 GMT 2008

On 6 Feb 2008, at 10:52, Frederik Ramm wrote:

> 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 last half where I outline SC's position is, well, their position  
and not mine. It is available in their protocol and FAQ and in other  
communications (such as email discussions).

I personally like the DbL/FIL and think that it is a good licence  
that accomplishes what it is intended -- creating a constitution for  
data sharing with a share alike provision within the context of

-- a free/open approach to data
-- the legal tools available

I personally am neutral on a preference between the two and think  
that it would be wholly inappropriate for me to recommend one or the  
other to OSM.  I think that anyone wanting to use one of the  
approaches should pick the one that best suits their needs.

>
>> 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?)

The licence is not "based on" the EU database directive.  It uses it,  
just like copyright, because it is an available way to protect the  
database and its contents. To *not use an available legal tool to  
accomplish a certain goal (share alike for data) doesn't make sense  
to me.  I think Licences are a tool to accomplish a goal, not a  
policy statement against database rights.

Science Commons I think it is fair to say doesn't like database  
rights as a policy and advocate against it, and so don't think that  
people should use it in their licences. So for them, licences should  
make this policy statement.

Also note that the EU's review was based more on the law not  
encouraging an explosive growth in database companies in the EU. They  
found on balance that they will retain it.

Which, brings me to another point.  Lots of people think aspects of  
copyright law are bad law and bad policy, but that doesn't stop them  
from using a CC licence or the GPL, both based on copyright.   
Advocacy is different from licensing.

>
>> -- 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"?

See my post -- the licence is not based only on EU database rights,  
and copyright could protect the whole database.  I don't think the  
licence is "completely toothless" in the US, only that it has  
different enforcement issues.  How enforceable it is, is one of the  
questions we'd hoped would be addressed by feedback in the beta stage.

>
>> 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.

They just have other ways that complement their contracts.  I don't  
think that it "completely destroys" other arguments. You can still  
have a contract and still enforce that contract. You can use other  
rights as well. It's just important to keep in mind the differences  
in approaches.

>
> 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.

We wrote the DbL/FIL to be simple and readable, and I think it is. I  
completely disagree that:

-- the DbL/FIL has to be complex.
-- that EU users are at "an enormous disadvantage"

I should note that ANY licensing approach when compared to a public  
domain approach is by definition more complex! That doesn't mean that  
it has to be at the level of complexity that no one can use it.

>
> CC0 now!

I know I'm biased (I helped write it too), but check out the Public  
Domain Dedication and Licence instead:

<http://www.opendatacommons.org/odc-public-domain-dedication-and- 
licence/>

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007