[OSM-legal-talk] Click-through

Richard Fairhurst richard at systemeD.net
Fri Oct 17 23:26:21 BST 2008

Frederik Ramm wrote:

>> So "if we can't get rid of the click-through" is not the question.
> Replace it by "if we cannot find a license that works without  
> clicktrough".

Well, there ain't none.

Sorry, I'm over-simplifying. But the question is really simple, it's  
just the answer that's complicated.

In some jurisdictions you have statutory protection for geodata under  
copyright law and, sometimes, "neighbouring rights" (e.g. EU database  
law). So everything's easy.

In other jurisdictions, you have to rely, to a greater or lesser  
extent, on contract. And there's no clever wording, no "find a  
licence", that can get around that. Usage of the database is  
regulated by statute, by contract, or by judicious application of a  
baseball bat; they're the only options.

Our data, along with that of every geodata company in the world, will  
be made available in contract-biased jurisdictions (like the US).  
Does TeleAtlas require click-through to work? No. Does Navteq? No.

So does ODBL? No. Come on.

It's all about appetite for risk. OSMF some time last year took a  
view, subject to consultation, that click-through would improve  
enforceability without a deleterious effect on usability. You  
disagree. That's fine. On balance, and after several months' thought,  
I think I probably do, too.

But Jochen, when you say "So I know that it is not enforcable unless  
both parties have agreed" and start quoting Wikipedia, with respect,  
that's the worst type of barrack-room lawyer. "Agreed" isn't that  
simple. Read the summaries of the Register.com vs Verio case I cited  
earlier. That is a contract being enforced, in a contract-only  
jurisdiction, _without_ anyone clicking "I agree". It's a case  
relating to repeated extraction from a big database - actually quite  
similar to OSM.

I'd also point out that, of all the reasons to switch from CC-BY-SA  
to ODBL, enforceability is certainly no higher than third in my list. :)


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