[OSM-legal-talk] Houses of cards

[80n]

On Wed, Feb 20, 2008 at 12:59 PM, John Wilbanks <
wilbanks at creativecommons.org> wrote:

> --------
>
>  > > 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.
> --------
>
> 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
>

Well I read that.  What they actually said was:

"The consortium was concerned that other groups might combine some of the
HapMap data on individual genotypes with their own data to generate
patentable inventions on haplotypes and then use these patents to exclude
researchers from being able to use the HapMap data, which some call
'parasitic' patents."

and later:
"There are now considerably more data and analysis methods than when the
Consortium started ... As a result of these advances, the consortium has
concluded that the patterns of human genetic variation can readily be
determined clearly enough from the primary genotype data to constitute prior
art."

"Thus, in the view of the consortium, derivation of haplotypes and
'haplotype-tag SNPs' from HapMap data should be considered obvious and thus
not patentable. Therefore, the original reasons for imposing the requirement
to obtain a license to see the data no longer exist, and the licensing
requirement has been dropped by the HapMap consortium."

Nothing there about it being removed because it didn't work.  By all
accounts it *did* work, it was removed because prior-art made it
unnecessary.


> It's a pattern, this public domain thing.
>

Perhaps you have a better example then?


>
> 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...
>
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