[OSM-legal-talk] Privacy and Terms

[Ed Avis]

Francis Davey <fjmd1a at ...> writes:

>>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.

Cool, so we agree on this point.  Sorry, I don't mean to flame, I misread
the position you were taking.

>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,

Hmm, I think I would argue that 'use of the data' is no consideration at all
since I would have been able to use it anyway even without agreeing to the
terms.  For example if I publish a copy of the King James Bible with a
'contract' at the front, and the consideration for this contract is being
allowed to copy the text, clearly this isn't a valid contract since the
supposed consideration is really nothing at all - the text is in the public
domain anyway.

Therefore, granting permission on the data can only be a real consideration
when there is some pre-existing law which means the other party needs such
permission.  That can be copyright law, database right or whatever.

But in such cases, I would suggest, a contractual agreement is not necessary
anyway.  The copyright holder can sue me for making copies of a book whether
or not I agreed to that when I bought it.  If you don't have a licence for the
necessary copyright or database rights then you are not allowed to distribute
the data.  There is no need for any contract.

That is why I think that imposing an EULA or terms and conditions on people
is unnecessary and ineffective.  Either the database right exists or it doesn't;
if it does then no contract is needed to enforce it; and if it doesn't then no
contract has been agreed to because there is no consideration.

As a lawyer does that make any sense, or is there some flaw in the above?

>Contracts very rarely fail for want of consideration.

I wonder how much case law there is for 'contracts' which are some text
displayed on a website, which has not had any scope for negotiation, and where
the supposed consideration is granting you 'permission' for something you most
likely had the right to do anyway... I doubt many such cases get to court.

>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?

Yes, quite... so far 'good practice' has been the reason given, which doesn't
really satisfy me and others that the benefits outweigh the costs.

>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.

Agreed.

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

I am sorry about the tone of my previous message - I would like to hear more
of your thoughts.

-- 
Ed Avis <eda at waniasset.com>