[OSM-legal-talk] Please enable commercial use

[Nathan Vander Wilt]

On May 6, 2008, at 3:24 PM, Rob Myers wrote:

> Which particular FUD do you have in mind? ;-)

Over on the talk list, the notion was spread that even when a user  
notes that they dedicate their data to the "Public domain", all it  
might take to undo the Public Domain-ness of those contributions would  
be for someone else to edit it, or someone to feel that features were  
added with reference to a nearby ShareAlike feature of theirs. While  
this seems unlikely to be brought to court, and hopefully even more  
unlikely to be upheld, I'd much rather avoid that scenario altogether.  
If data users who need public domain data must be just as paranoid of  
the OSM dataset as OSM is paranoid of the OS data, that to me is a sad  
situation.

> *Any* licence will carry legal risks. Paying for a proprietary dataset
> without talking the licence through with a lawyer would be silly.  
> There
> is no reason why a free licence should be any different. "Simple"
> licences are not necessarily easier to interpret.
>
> Public domain dedication is problematic in jurisdictions where  
> copyright
> and/or moral rights are inalienable. CC's original dedication system  
> and
> the new CC0 system both hit this problem. Basing a business on  
> dedicated
> material is therefore also a risk.

While I am not very familiar with IP law outside of the United States,  
the fact is that since OSM is a database things get way more  
complicated still. So we can pick a license that takes a three-way  
(copyright, database, contract) approach to ensuing that users of the  
data are liable to any one of the thousands of contributors who  
interpret the Attribution or Share Alike components more strongly than  
the user. Or we could pick a license that takes a multi-pronged  
approach to putting the data as essentially as possible in the public  
domain, while still expecting guidelines like Attribution and Share  
Alike. Yes, the guidelines would not be *legally* enforceable, but  
then again neither are database rights in many juridictions.

If there were clear Community Norms I could follow as far as  
Attribution and Share Alike, backed by a license that said "we've  
tried our hardest to dedicate all these facts back into the public  
domain" (ie http://www.opendatacommons.org/odc-public-domain-dedication-and-licence/) 
, I would feel covered enough both ethically and legally to use the  
data without fear of reprisal.

> It would be very useful to know which licence ambiguities you feel the
> new proposals don't address.


The main ambiguity is "who am I and my customers liable to?", that is:  
does each contributor reserve the right to determine things like  
whether the license notice was "reasonably calculated" enough to make  
users aware, or whether a greatly abbreviate form of such notices is  
acceptable in certain circumstances (eg on a printout), what  
constitutes a substantial extraction or derivative.

The most pertinent example comes from the discussion alluded to where  
someone who contributes a Share Alike street might want to claim that  
a pub placed by a user who dedicates their work to the public domain  
is would be infected by the viral license because it could be  
perceived as a derivative work based on the street.
What if my users geotag a photo based on OSM data? Will some  
contributor feel entitled to statutory damages if that photo is  
subsequently not published under a Share Alike license? This seems  
ridiculous, but I do not have the resources to see if there are any  
jurisdictions that would hold that opinion, and certainly neither do  
most of my users.

What about a utility that generates custom map images for users? How  
would the required Notice be given? (I see OSM's export function  
doesn't seem to have any sort of attribution, so that doesn't provide  
much guidance.)
If this sort of use would fall under the "Factual Info" license there  
is actually no provision for falling back on a URL. Surely not every  
document/brochure/etc. that contains an OSM-derived map image needs to  
include the full text of the Factual Info license? Again, even if this  
seems silly to most of the community how do I know one cranky  
contributor can't haul me over to a court in his home country because  
he sees things differently?

I will admit that on further review and in light of the more helpful  
questions I got back from this list, the new license does look (if  
it's safe to assume that the above concerns are not reasonable) as if  
it would enable us to use OSM data in pretty much the same way as the  
guidelines I proposed. That said, the arguments made in http://wiki.openstreetmap.org/index.php/Open_Data_License#Criticism 
  make a strong case to my mind for a "public domain with a moral  
component" license. Probably the biggest appeal to the PDDL +  
Community Norms approach is that it encourages a single source of  
clear, non-legalese guidelines for how the data is meant to be used  
while making it plain that confusing or mistaken interpretations of  
those guidelines are not likely to lead to infringement claims.

thanks, especially if you made it this far,
-natevw