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

[rob at robmyers.org]

I am not a lawyer, this is not legal advice.

Quoting Peter Miller <peter.miller at itoworld.com>:

> Not true. The licence upgrade clause in CC-BY-SA 2.0 states in clause b:
> "You may distribute, publicly display, publicly perform, or publicly
> digitally perform a Derivative Work only under the terms of this License, *a
> later version of this License* with the same License Elements as this
> License"(my emphasis). This allows the OSMF (on anyone else) to distribute
> OSM data using CC-BY-SA 3.0, 4.0 or whatever  I am really concerned that
> this whole drama is being built on false foundations.

The important part is that this applies only to a "Derivative Work".  
You cannot simply relicence the original work, in this case OSM, you  
have to create a derivative and you may then relicence that.

Also this only allows derivatives to be relicenced under the same CC  
licence, not another licence.

Now, that said, I would argue that anyone uploading new ways to OSM is  
creating a derivative work by changing OSM and this could be licenced  
under a later CC licence. This derivative could be relicenced CC 3.0.  
So OSM could upgrade to a new BY-SA by arranging for this to happen.

CC BY-SA 3.0 has the ability for derivatives of work that it covers to  
be relicenced under a different licence that CC declare compatible. It  
would be great if a data licence were to be declared compatible as  
this would make licence migration for OSM much easier, but it is  
unlikely that CC would do this given their stance on data that Richard  
has mentioned.

> I am not really convinced by your argument on copyright/DB rights. A map is
> not a factual in the same way that a gazetteer would be or a telephone
> directory. Other mapping companies using copyright combined with contract.

In order to do this the materials to be licenced must be copyrightable.

> You say that we don't have a contract but the CC-BY-SA 3.0 licence says: "TO
> THE EXTENT THIS LICENSE MAY BE CONSIDERED TO BE A *CONTRACT*, THE LICENSOR
> GRANTS YOU THE RIGHTS CONTAINED HERE *IN CONSIDERATION OF YOUR ACCEPTANCE OF
> SUCH TERMS AND CONDITIONS*"

That's very interesting, I hadn't thought about that part of the  
licence before. There may be two problems in using it for OSM though.

Firstly the rights and requirements that are granted are those  
regulated by copyright, not database right or any other rights. If the  
licence was applied to a trademark or patent (non-copyright legal  
items) or a public list of mere facts (something with no possible  
restrictions), would this contract assertion have any legal force?

Secondly, in the US, there are issues to whether something is a  
licence or a contract and I'm not sure that the "consideration" of  
accepting the terms would be sufficient. This clause looks like a  
shrinkwrap licence.

> (my emphasis). So.... we OSMF can distribute
> under CC-BY-SA 3.0 or above, CC-BY-SA 3.0 (and above) is a contract (to the
> extent that it can be in law), and this is the very similar to the legal
> arrangements protecting Navteq's $8billion asset base. If we stick with
> CC-BY-SA then we don't have to ask permission of our contributors and the
> risk of any split removed.

I doubt that BY-SA could be used to cover data in the US.

I am curious about how Navteq work, though. This sounds worth investigating.

Here's a sample Navteq licence (with lots of redacted clauses...):

http://contracts.onecle.com/navteq/harman.lic.shtml

- Rob.