[OSM-legal-talk] transitive copyright and "creative errors"

[80n]

On Wed, Feb 20, 2008 at 1:10 PM, John Wilbanks <wilbanks at creativecommons.org>
wrote:

> answering two at once:
>
> jtw
>
> -------
> Rob says:
>
> I view OSM as a three-layer stack WRT copyright:
>
> 1. At the bottom are the GPS traces or other data. This is basically
> factual data, and so not copyrightable. I don't think issues of
> personal data or expressiveness come into this.
>
> 2. Above this are the nodes, segments and ways, based on that data.
> This involves some human decision making, and is a structured data
> set. For me, not being a lawyer, this is a grey area and could go
> either way.
>
> 3. Above this are the maps, rendered from this data, which are
> copyrightable. The duration of that copyright is debatable depending
> on whether the maps are regarded as computer generated or not.
>
> The nice thing about the ODL is that this stack can be modeled in
> licences. But I don't want to see a situation where the "bad guys" can
> remove users rights and OSM's licence just helps the good guys stay
> good. If the contract approach has that effect, in particular if the
> copyleft it creates isn't transitive then I am concerned about it.
> -------
>
> I think this is a pretty good summary, actually. The issue is mostly
> about the data in #1 and the stuff in #2. I think #2 could indeed go
> either way - that's probably uncompiled code from a legal perspective
> and I'm not even sure how I would want the courts to decide on it. My
> gut is against the relentless expansion of IPRs, so that leads me to
> lean in the hope that #2 is still PD data, but I understand the desire
> to give people incentives to do the work as well.
>
> But indeed, contracts in the absence of IPRs are non-transitive. That's
> the point of a contract - it's only binding to the people that sign it.
> Otherwise I could sign a contract with Rob and it would bind Steve - and
> something tells me Steve doesn't want me in particular to sign him up
> for anything. We're back to the problem of privity.
>
> When you try to mix a contract-based approach with an open download
> policy, you get into a tough space. Either you have to start a culture
> of tracking and enforcement or you have to expect that if someone -
> maybe not an evil company, maybe just a griefer - reposts your data two
> computers removed from the computer that downloaded it - and that your
> data will then essentially be in the public domain.
>
> ------
>
> 80n says:
>
> John, perhaps you could comment on the following often suggested gambit:
>
> Interspersed within all the facts in the OSM data dump are a number of
> non-factual elements.  There are both accidental errors and probably
> quite a few *deliberate* errors (I know of some).  These non-facts are
> presumably creative works and can be covered by copyright law just like
> any other creative work.  Your suggestion that you can do what you like
> with the data somehow seems to ignore this minor detail.
>
> How would you propose to filter out the non-fact elements that are
> genuinely copyright?
>
> -------
>
> That's a completely new one to me. I need to do some research on it
> before I comment in any detail. But it will pivot on whether or not the
> factual errors are indeed creative works. If they were then in theory
> they could create a risk scenario in which a user would have to assume
> that all the data was potentially contaminated by copyright. But
> wouldn't that also create a distrust in the data compared to data sets
> that didn't have deliberately introduced errors? Questions, questions.
>

It is well documented that many mapping agencies including the Ordnance
Survey  insert so called Easter eggs into their maps:
http://www.telegraph.co.uk/htmlContent.jhtml?html=/archive/1999/08/08/naa08.html


There's no evidence that this is problematic or leads to distrust for most
regular uses of the data.  Unlike genetic datasets, a carefully crafted
deliberate error in geo-data is unlikely to create a two-headed mutant ;)

80n


>
> In the life sciences, the better the data set, the closer it is to
> describing the world as it is. And the danger is of unknown errors. But
> every community is different. Let me do some thinking and research on
> this one and I will try to come back with an intelligible answer soon.
>
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