[OSM-legal-talk] [OSM-talk] The OSM licence: where we are, where we're going

[Tom Hughes]

In message <20080109094636.sm1of69xwgk8ocsw at webmail.systemed.net>
        Richard Fairhurst <richard at systemed.net> wrote:

> Second, really really really really do read the text of the draft Open  
> Data Commons licences, as considered in the opengeodata posting:
> http://www.opencontentlawyer.com/open-data/open-database-licence/
> http://www.opencontentlawyer.com/open-data/open-data-commons-factual-info-licence/

To my mind the interesting question about the ODL is how (or perhaps
whether) it works in jurisdictions without database rights.

On the face it claims to work in those jurisdictions via contract
law, but what is not clear to me is how you require people to enter
into that contract.

The beauty of copyright based licenses like the GPL and CC is that
because copyright is automatic you only get permission to do things
by accepting the license so the default position is that you can't
distribute the item except under the terms granted to you by the
license.

The same applies to databases in jurisdictions with database rights
in that you can't distribute the database until you are given a
license to do so, but where database right does not exist there 
is (as I understand it) nothing to stop you doing so without entering
into any contract. So although the license may claim to operate via
contract law, if somebody chooses not to enter into a contract they
can go ahead and do what they like without being bound by the terms
of that contract.

[ ... slight delay while I read wikipedia on contracts ... ]

I guess the theory is that publishing the license constitutes an
offer and taking and using/distributing the data constitutes an
acceptance which (in civil law countries) is enough to create a
contract. Whether there is some way in which a person could reject
the offer and then use the data anyway is an interesting question
though?

In common law countries the requirement for consideration makes
things a little more complicated - it is clear that the person
taking data gains something of value (the data) which acts as
consideration but what is the consideration in the other direction
from the person using the data to the person providing the data?

Tom

-- 
Tom Hughes (tom at compton.nu)
http://www.compton.nu/