[OSM-legal-talk] Privacy and Terms

Francis Davey fjmd1a at gmail.com
Fri Jul 3 15:00:36 BST 2009


2009/7/3 Ed Avis <eda at waniasset.com>:
>
> Yes, which is why a contributor agreement is needed - but that does not mean
> you need a set of terms and conditions just to *read* the site.
>

Yes and as is I hope clear from what I have written (although your use
of the word "but" suggests possibly not) I do not believe you do. I am
trying (though unsuccessfully) to make helpful remarks, but they don't
seem to be being helpful.

>
> I think if it's necessary to undertake a complex contractual obligation just to
> look at some map data, then it is no longer free map data.  But if we assume

That is, as I understand it, what the new data licence does attempt to
achieve - but I could have misunderstood this.

> that the goal of OSM is now 'provide legally encumbered map data under EULA'
> for the sake of this discussion...
>
>>There's a difference between that and a pure copyright
>>licence since you don't have a right to use copyrighted material
>>without a licence (or some exception holding) so "I didn't know the
>>terms of the licence" won't help someone who wants to "steal" the
>>data, whereas if you want someone to be bound by a contract you have
>>to bring its terms to their attention.
>
> Yes, and they have to agree to it (just seeing it on a web page is not enough),

Sure, its a necessary but not sufficient condition.

> and although IANAL, I think there must be some consideration, for example a
> monetary payment.  It's not clear that putting up an intimidating screenful

There has to be consideration, but if I say to you - if you want to
use my data you must agree to abide by these contractual terms - then
there will be consideration: you get the use of the data, and I get
whatever I get out of the terms and conditions (eg you agreement to do
or not to do certain things). Contracts very rarely fail for want of
consideration. NB: this is all in English law terms, other systems of
contract law work differently.

> of legal boilerplate accomplishes anything.
>

Oh yes it does: it can annoy and intimidate people. It is what some
people want to do. Not, I suspect, what OSM wants to do which is why
(amongst other things) you shouldn't use ALL CAPS paragraphs unless
you want people to feel shouted at.

What I think you mean is that OSM shouldn't use the suggested terms of
use (I assume that's the "screenful of legal boilerplate"), I probably
agree (that's why I said "yuk" earlier in the discussion) but the
starting point is not the terms of use, its what are you trying to do
with terms of use? What risks are you trying to avoid and/or what
advantages are you hoping to achieve? Once you have that thought
through, then its pointful to look at whether you need any form of
legal wording on your site and, if so, what it should be.

There's a lot more to such things than merely trying to bind visitors
to a contract. For example if you process personal data then as a
matter of good practice you should have a clear explanation of what
you are going to do with it (and as a matter of law in the EU you
should inform the data subjects you are doing so). I suspect OSM does
need such a thing.

A statement can amount to a warning or disclaimer that does not create
contractual relations but puts the recipient on sufficient notice to
be aware that there are dangers or risks in using a site in a certain
way and so as to limit the site owner's liability - I cannot see any
need for such a thing with OSM.

Anyway, the tone of responses seems to be that lawyers aren't really
welcome here, so I'll shut up again.

-- 
Francis Davey




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