[OSM-legal-talk] transitive contracts

[John Wilbanks]

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Gerv says
 > Why can't contracts make contracts transitive? "You agree that if you
 >pass this data on to someone else, they need to sign the same
 > undertaking."
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Contracts can, indeed, do this. But if one person breaks the chain and 
posts, then the chain is broken, and the share-alike stops. That's the 
thing. Share-alike is entirely based on copyright. It doesn't have the 
magic power in the absence of copyright - that's why it started out 
being called copyleft and not dataleft.

If you're going to pursue people in the court of public opinion, I don't 
understand why you won't use a public domain + trademark strategy. Using 
contracts you don't plan to enforce strikes me as a very odd strategy. 
But that's in the end why it isn't my choice.

And this is definitely not science, where there's a real power to the 
public domain. Re: the HapMap, there's dozens of references as to how 
the clickwrap prevented the database's integration into the broader life 
sciences community database and I'm happy to dig some up, but I'm a 
little slammed right now. You can google your way there in the interim, 
it's not buried treasure. There's also the NASA image archives and 
pretty much all US government data including survey data - all PD.

There's a lot of other good stuff to respond to, but I don't want to be 
a listbully and try to fisk every answer. I think the post about 3% 
caring about PD and 3% caring about share alike and 94% watching the 
fuss is probably accurate. It tends to be so.

But as in cultural works, so in data. The policy that Disney pursues 
locks up scholarly papers, and the policy that you pursue may well 
interact in ten years with something you can't imagine. My worry is that 
in the future there will be a project that is based on the public domain 
that could compete meaningfully with a closed project, and they will 
pass over your data because you have enclosed it in a contract that 
failed to prevent the exposure of your data. It's not just about the 
uses you envision today. It's about 10 years down the line, 20 years 
down the line. Strategies built on strong copyrights and IPRs have a 
long lifetime, and a lot of unintended consequences.

If you do pursue the strategy of a clickwrap, I do hope that you 
implement and clickwrap and a registration policy, so that you can track 
your users. You will not be able to name and shame people who don't sign 
contracts - there will always be the excuse that they got the data 
somewhere else unless you have proof, and contracts have much more 
weight when the user know you've tracked them. I hope you choose not to 
pursue that strategy. But if you do, do it well.

I'm not going to be able to respond in real time for a while - I'm 
traveling and in conferences where I don't expect to have wifi - and I'm 
on digest form, so if there's a question you really want answered please 
copy me individually in your emails to the list, as those will come 
straight through to my inbox.

jtw