[OSM-legal-talk] Click-through

[Jochen Topf]

On Fri, Oct 17, 2008 at 11:26:21PM +0100, Richard Fairhurst wrote:
> 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.

No, they don't require click-through, they require a signed agreement.
Can you get Navteq data anywhere without that?

> So does ODBL? No. Come on.

Our case is not comparable with any closed license, because anybody can
use our data and re-publish it. So that puts the burden on all those
re-publishers to make sure that their downloaders read (and maybe
click-through) the license.

Lets for a moment assume that we don't need click-through. OSM posts
terms of use. I download the planet file and post it on my web site for
download. I forget to put any terms of use there. Person X downloads
data from me. Never saw the terms of use. I am probably in breach of
contract because I made it available without showing the terms of use.
But X isn't, because he never saw it. Does X have a valid license to use
the data? The license explicitly says that if somebody is in breach of
the license the people downstream from him are not and can still use the
data. Ups.

So even if we are willing to take the risk and not use a click-through
the whole contract thing falls apart. There is a good reason why
copyright and the European database directive were invented, namely to
cover this case where contract law alone is not enough.

> 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.

Well, you just citing a single case is also bad form. Yes, in this case
the court decided that the terms of use posted on the website are valid.
I remember, though can't cite any sources, that there have been
different decisions. From what I remember basically the argument was:
Terms of use posted on web sites don't mean a thing, because the web
would not work if for every link you clicked you'd have first to check
whether you agree to the terms of use the web site owner might have
posted somewhere. By posting something on the net, you agree that people
can lock at it. Now this argument might not hold for a different
service like WHOIS or a database API, but that certainly is debatable.

Jochen
-- 
Jochen Topf  jochen at remote.org  http://www.remote.org/jochen/  +49-721-388298