[OSM-legal-talk] Follow up comments

[Jordan S Hatcher]

My apologies if this has been brought up before -- as I mentioned I'm  
playing catch up to this week's posts on the list. I'm going to just  
pull some threads in the conversation and comment on them, rather  
than copying and pasting from people's posts. And just under the  
deadline...

+++

In terms of what the licence covers and various actions:

Copying entire database verbatim, content (data) and all -->  
copyright, database rights, contract
Copying entire database with changes (a derivative database), content  
(data) and all --> copyright, database rights, contract
Taking out all content (data) and making a new database (a derivative  
database --> database rights and contract

+++

Trade secret was mentioned as a "fourth pillar" of protection by JTW.  
I agree that this isn't appropriate/suitable for an open project,  
which I've pointed out on this list before, and in fact pointed out  
as a reason with the Open Data Commons Public Domain Dedication and  
Licence  doesn't waive "unfair competition" in the protocol.

<http://www.opendatacommons.org/2007/12/18/unfair-competition-and-the- 
science-commons-protocol/>

A open project using the Open Database Licence could possibly use one  
of the other areas of "unfair competition" depending on the context  
and the legal jurisdiction:

# Publicity rights;
# Trade mark claims;
# Passing off (which is a lot like trade mark);
# Deceptive advertising;
# Other kinds of unfair methods of competition

+++

I've seen mentioned a few times the ease of administration between  
the public domain, the DBL, and/or the CC licences.  My opinion is  
that _of course_ the public domain dedication will be easier. My  
personal opinion is that hte DBL is easier to administer than the  
current CC licences, but obviously I'm biased.  I really want it to  
be, and Charlotte and I drafted it to be, easy to use and clear in  
terms of what it does and doesn't address.  The text isn't of course  
set in stone and can be improved.

+++

Testing licences in court.  A licence, if it does it's job properly,  
doesn't end up in court because people are clear about its  
obligations. I've always been against this idea that any FOSS or open  
content licence needs to be brought up in court to be effective.   
I'll leave it at that.

+++

Regarding commercial use of OSM materials, as was pointed out that is  
allowed under the current licence, under FOSS like the GPL, and in  
the Open Data Commons Database Licence. This is not a licensing issue  
under the DBL as it doesn't have a commercial restriction.

+++

Regarding enforcing the Open Database Licence via contract. Yes, the  
more you treat the data like a software End User License Agreement  
(EULA) the clearer the contract case -- clickwrap, terms and  
conditions, signing up to access the API, and the like would all be  
ways to strengthen the contractual relationship.

+++

I think one of the questions is, what does the current CC licence  
cover now?

The licence is I believe CC-BY-SA 2.0, which is the former "generic"  
version and based on US law.
<http://creativecommons.org/licenses/by-sa/2.0/>

It does not:

-- explicitly state that it operates by contract as well as a  
copyright licence 
-- cover EU database rights

The ODL does both of these things.

+++

In relation to the preceding, the ODL is designed to work worldwide  
and to provide an easier to use and more tailored legal tool that CC- 
BY-SA, which was the previous option. I think it does this, but again  
I'm biased.

However the ODL does not:

-- create copyright in jurisdictions where none exists 
-- create database rights where none exist (either because the  
database doesn't qualify or because database rights don't exist).

Is the licence going to work perfectly in every jurisdiction for  
geodata?  I don't know. Are there problems of copyrightability and  
existence of database rights and relying on contract to enforce the  
rights? Yes. See Charlotte Waelde's article quoted elsewhere (she is  
one of the co-authors of the ODL by the way).

+++

I think that there has been some mention of the public domain and its  
applicability in some jursidictions, such as France.  I think that  
the PDDL (the other Open Data Commons licence) covers this with the  
use of a BSD style licence as a part of it when the PD dedication  
doesn't work.

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007