[OSM-legal-talk] Houses of cards

[John Wilbanks]

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 > > Quoting SteveC <steve at asklater.com>:
 > >
 >> >> And you believe NavTeq and TeleAtlas are also built on a house of
 >> >> cards?
 >> >>
 >> >> Are the Nokia and TomTom due diligence people really that stupid?
 > >
 > > No, but they are big corporations with expensive lawyers who are good
 > > at drafting impressive-looking EULAs that would be costly to challenge
 > > in court.

Well I can tell you exactly what they do, their licenses are based on
the same three things that the ODL is. The Database Directive,
copyright and contract.
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So I can't dig through and find the NavTeq and TeleAtlas contracts, but 
if anyone wants to send them my way, I'll look at them. But my instinct 
is that the contracts are built on a fourth pillar, which is trade 
secret. http://en.wikipedia.org/wiki/Trade_secret

At least in the US, trade secret allows much more protection over a 
compilation of information than any other system. It's obviously not 
available to OSM as a strategy. I'm also willing to bet there's a 
boatload of nasty DRM on it.

They aren't based on a house of cards, so to speak, they're based on a 
culture of enforcement. It's where you wind up if you choose a culture 
of compulsion of behavior based on data - there's no floating IPRs to 
scare people away. Either you simply have a license that you don't try 
to enforce, or you chase down the bad guys. Another way of saying it is 
thusly: if you have enough money, you can keep a house of cards standing 
for a long time, especially if you keep that house off the public web 
and you know each person who has a copy, so it's easy to know who to sue 
if it shows up somewhere.

Mixing the NavTeq strategy with an open, unrestricted download link is 
tricky business. If you do take that road you should probably install a 
clickwrap page and at a minimum force people to sign the contract btw - 
it's even less enforceable if there isn't even a clickthrough.

The thing that is at debate here is the inherent tension between being 
an open community and attempting to compel behavior. There is no such 
tension at NavTeq. There's a closed community, and if you want to get 
the database, you have to identify yourself, sign a big scary contract, 
and be tracked by a big scary company that has plenty of money to sue you.

Or you take the PD strategy and tell NavTeq that the value of their 
trade secret is rapidly dropping as OSM emerges as an alternative in the 
PD. You let NavTeq's open competitor use your trademarks, and your 
community's goodwill, with a trademark strategy. You mock the culture of 
control and enforcement.

I'm pretty passionate about this in the life sciences, after watching a 
community in the life sciences go down the road of "let's use an open 
contract to compel open behavior" - it is called the HapMap database of 
human genetic variation. It was created as a precompetitive database of 
information, but with a clickwrap that asked users of the data not to 
encumber future users - i.e., don't file patents that foreclose on the 
database. The clickwrap was quietly removed after 18 months because it 
didn't work, despite the HapMap folks indeed having more money than God 
- $100M US I recall. Not only was it impossible to achieve those goals 
in contract, it was preventing the integration of the database into 
other databases. And the public domain was the only solution that they 
found. See http://www.sanger.ac.uk/Info/Press/2004/041213.shtml

It's a pattern, this public domain thing.

I could have recommended to CC that we embrace the ODFL, or write our 
own - people would have LOVED it. It'd have taken off like sliced bread 
- if we wanted to own this space, that would have been the successful, 
though hollow and cynical, strategy. It's far harder to argue for the 
public domain than to market a CC license as the answer to all of life's 
problems for data. The PD is a hard sell, as this debate proves...