[OSM-legal-talk] Deconstructing the "loss of data" claim

[bvh]

On Tue, Feb 19, 2008 at 06:54:37PM -0500, John Wilbanks wrote:
> I'm going to be a little provocative here and say that your data is 
> already unprotected, and you cannot slap a license on it and protect it. 

I feel you (and others who approach OSM data from a legal angle
as opposed to those who have actually contributed to it)
underestimate the amount of original work there is in
representing reality through the mechanisms that OSM provides.

For the sake of clarity here are some of the creative decisions
that OSM contributors take

- decide which subset of information they make available (a creative
process involving prioritizing and classification comparable with
creating a taxonomy)
- decide how many points are needed to approximate a curved road
so as to be usefull for users of the work (a creative process
involving finding a balance between clarity, practicality and
accuracy comparable with synthesizing a sampled graph from
continuous data)
- deciding on a term to describe a physical feature (a creative
process involving natural language comparable with writing a poem)

An analogy : a realist painting is still copyrightable, even when
it tries as best as it can to represent facts.

OSM also tries to represent facts as best as we can. And still,
given the nature of the technology we work with, the amount of
original work and creative processes that happen along the
way is simply non-negligable.

Look at it this way : a scientific paper is all about facts, but
it is still a copyrightable text because the way a specific
scientists expresses the facts in words is a creative process.
A newspaper article about a business deal is all about facts,
but it is still a copyrightable text. A chart in a stock
exchange analyst report on GOOG is all about representing
facts, but is still a copyrightable drawing. And so on, and
so on.

Likewise OSM data is all about facts, but the actual formulation of
those facts in the language of OSM has still gone through a 
creative process.

The OSM license does not cover the reality on the ground, because
as you say that is information and as such not copyrighteable.
150% agreement there.

What it does cover is the approximation of the reality on the ground
using the constructs allowed by the OSM language just as an
eye witness report in the NYT is an approximation of the reality on the
ground using the constructs allowed by the English language.

> That means I'm free to ignore any kind of share-alike you apply to your 
> data. I've got a download of the OSM data dump. I can repost it, right 
> now, as public domain. You can perhaps try to sue me - though I'm pretty 

That is your position. But at the same time we hear about institutions
that refrain from using OSM data because they feel they are unable
to meet the terms of our license (attribution to all contributors).
That is in direct contradiction with your assertion.

Clearly your position is one where reasonable people can (and do) disagree.

> It's a far healthier strategy in many ways than relentlessly trying to 
> stamp out perceived violators. One can imagine a data owner beginning to 
> empathize with the RIAA, who see violations everywhere and in so doing, 
> loses focus of the opportunities for good outcomes.

Common, this is insulting : OSM as a project has never gone
after violators, let alone engaged in the obsessive behaviour that
you describe. To paint us as would be RIAA-ist who want to engage in serial
litigation goes so counter your measured approach in the first part
of your email that I wonder if it is written by the same person.

cu bart