[OSM-legal-talk] Privacy and Terms

[Francis Davey]

2009/7/3 Ed Avis <eda at waniasset.com>:
>
> 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.

Actually its Crown Copyright, but its unusual to see people bothering
to obtain licences for it (though years ago we did make the effort to
get a licence for an online version with no difficulty).

So, there's an interesting point here which is that, you could, in
principle, only sell to people who agreed not to copy it. They would
be bound by that agreement, though their successors in title and third
parties would not be. Having such a "contract" in the front of the
book is more difficult because its harder to see how and why a
purchaser of the book would be bound by it, unless they had had its
terms drawn to their attention before purchase.

This is the classic "shrinkwrap" question as someone else remarked.

Legal publishers do this by the way. I have several books which have
more or less ludicrous attempts to prevent my exercising my dominion
over books I have bought. Just because you say it, doesn't make it
binding, not because of want of consideration but because its not
incorporated into the contract.

The worst example I have ever seen was in a youth hostel in
Pembrokeshire. In the kitchen was a notice which said that the YHA and
its employees were not liable for any personal injury or death whether
caused by their negligence or otherwise. There is so much wrong about
such a statement I wouldn't know where to begin. Some website T&C's
try to do the same kind of thing.

>
> 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.

Sure. That's exactly right. But that assumes that the other
contracting party has the data already. Having a contract that only
permits you to download it from my site (or whatever) will have
consideration because I don't  have to let you do that (although
there's a bunch of unresolved legal issues with the internet there
too).

>
> 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.

Yes, that's right too. You don't need to obtain a contract to enforce
rights you already have.

>
> 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.

The idea behind the ODbL is, as I understand it, precisely to try to
impose wider controls than would be possible by merely using
intellectual property law.

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

Apart from the small matter of consideration, no.

>>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.

In respect of text on websites: In the UK I suspect there are more
than you think, but they tend to happen at the rather knock-about
stage in the county court and so they don't get reported and we don't
hear about them. in the US there are *lots* and *lots* of them
reported.

But you are mixing up more than one issue. The lack of negotiation and
standard form is a wholly different question. Such a contract (a
contract of adhesion as my US colleagues would call it) may well bring
in other legal considerations.

>
> 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.

OK. As I said, google maps don't have a T&C imposed before use - what
would be useful is to identify what exactly are the problems that one
is seeking to deal with before going straight to code.

>>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.

Thanks.

-- 
Francis Davey