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

[bvh]

On Wed, Feb 06, 2008 at 12:59:46PM +0100, Frederik Ramm wrote:
> > I don't get it : you go on about how license such and such is
> > possibly unenforceable and then you propose moral guidelines
> > that are 100% guaranteed not enforceable. I fail to see progress.
> Well my position is the enlightened one: We can't enforce anything,  
> so let's be honest, admit that we cannot enforce anything, and tell  
> people what we would like to do them, knowing full well that if  
> anyone does not comply, well, he doesn't.

For one, I am not 100% convinced that we cannot enforce some
sort of viral license. I am 100% convinved however that we cannot
enforce your moral guidelines.

> Pushing a viral license in full knowledge that it is unlikely to work  
> against those who chose to neglect it, is lying to the community:  
> Giving the community the illusion of legal power, and even a hunch of  
> a promise that you will go after the bad guys.

I don't think there is an expectation in the community that OSM
will try to sue. I think there is more an expectation that if
someone does something 'bad' that we will try to push our
point of view to slashdot and other sympathetic media. And that
will work much better if there is a license other than PD.

> What you say is right; a license, even if not enforceable, does  
> express certain values or wishes. But in my eyes this is just  
> succumbing to wishful thinking ("I might sue them..."). Yeah you  
> might. But for this infinitesimally small chance of some time perhaps  
> taking someone to court, you weigh down your contribution with a  
> license that creates tons of questions, is unfair (because it has  
> much greater legal power in Europe than elsewhere), and wastes  
> everbody's time in dealing with it.

I think you focus too much on court and discount the other
ways of trying people to 'do the right thing'.

> Someone brought up 80n's example of how in tiles at home, we actually  
> use a big PNG image with one pixel for each Level-12 tile as a  
> database, telling us which tiles are land tiles and which are sea  
> tiles. So there's a database for you; at the same time, we say that  
> images created from OSM data (mashups etc) are not databases in the  
> sense of the license. This is one of, I'm sure, many points that will  
> never be solved clearly and properly.

I am not a lawyer, but I am meeting some of them in my work.
And when I apply the yardstick of my profession (software engineer)
nearly nothing is clearly and properly solved in legal matters.
(I am sure a mathematician will say the same thing about my work)
Somehow I have the feeling you are applying the engineering measure
of 'clearly and properly solved' to the legal field.

My point is that interpretation within a given legal framework
is exactly how it is supposed to work. That is exactly why there
is so much action before things move to court. And the thing is :
even given the knowledge that everything you'll put on paper
is flawed in some way or another, it is still in your best interest 
to state your wish and intent as much as possible within the
provided legal framework.

And from what I know only 3 options are thus far mentioned that
have some basis in some law : copyright, database rights or contracts.

Me personally I do think contracts are not the right representation
for OSM because that would suggest a license towards specific
users instead of the public at large. Copyright is also not the
right answer because a large part of our work is the recording
of reality and hence by definition not creative. That leaves us with
database rights which in my opinion have all the right properties.

cu bart