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

[Gervase Markham]

Jordan S Hatcher wrote:
> I'd like to note that, just to clarify, factual data is generally not  
> copyrightable, and so there would be nothing to assign.

Why is it that we are assuming (and I'm not just saying this to Jordan) 
that the individual nodes and ways in OSM are "factual data"? I don't 
think that's true, at least not for everything. When I trace a road, 
there is a creative process going on. I decide where to place nodes to 
best represent the road without using too many, and so on. There's 
certainly a creative element. Multiply that by millions of roads...

Something like a list of road names or perhaps a GPX track would be 
factual data, sure. But not all data in OSM is like that.

> -- Copyright probably protects copying (and other restricted acts)  
> the entire database and (to varying degrees only parts of the  
> database) but doesn't say much of anything about taking all the data  
> and creating a new database
> -- Database rights in Europe protect extracting and re-utlising  
> substantial amounts of the data apart from the database (so sucking  
> out all the data and creating a new database).
> -- 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.

So if a disaffected insider in a mapping company anonymously sends OSM 
in the US a copy of their database and we used it on a US-hosted copy of 
OSM, they couldn't come after us on these grounds? Could they come after 
us on any grounds?

> In the protocol, FAQ, and other venues, Science Commons argues:
> 
> -- People think that copyright protects actions with databases that  
> it doesn't (such as getting all the data out and creating a new  
> database)
> -- 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)

Which is why we are using the FIL, right?

> "The economic impact of the “sui generis” right on database  
> production is unproven.  Introduced to stimulate the production of  
> databases in Europe, the new instrument has had no proven impact on  
> the production of databases. ***
> Is “sui generis” protection therefore necessary for a thriving  
> database industry? The empirical evidence, at this stage, casts  
> doubts on this necessity.

So what protection is available in Europe for these database vendors? If 
the answer is none, then why are more copies of proprietary databases 
not floating around the web?

> There has been some discussion of commercial data providers on this  
> list.  I'm no expert in their practices, but they rely on:
> -- IP rights such as copyright and database rights
> -- contracts that prohibit re-distribution

So far, that's the same as our proposal, then? (Our contract doesn't 
prohibit redistribution, but it does prohibit other behaviours. Is there 
law to suggest that a non-redistribution clause has more legal force 
than other types of clause?)

> **-- marketing, branding, trade marks (and so on) that identify them  
> as a quality source of information

We can certainly do that :-)

> I think it's important to point out that commercial companies  
> protecting their data do not allow their users to share it, and so  
> most of their protection is based around this. By allowing others to  
> share the work freely, you lose many of these avenues of protection  
> (like technical protection measures, for example). 

This seems like equivocation on the word "protection". Your first use 
means "restricting copying", and so your first clause is a tautology. 
The last use means something wider.

OSM is looking for "protection" in the sense of "legally-enforceable 
restrictions". Commercial mapping companies make "no redistribution" one 
of their restrictions, but we don't. However, I don't see why that 
should reduce the force of the legal mechanisms they and we can use to 
enforce our restrictions.

Gerv