[OSM-legal-talk] Privacy and Terms

[Ed Avis]

Francis Davey <fjmd1a at ...> writes:

>>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

>Actually its Crown Copyright,

Interesting!  I thought it predated any copyright law (published 1611, Statute
of Anne 1710) and so would have to be in the public domain.  But 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.
>
>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

Good point.  So if there is a contract you must agree to before downloading the
data, the consideration can be that you received a copy of the data.

[digression from pure law to OSM politics - please don asbestos underwear]

However, I don't think this would be in keeping with the aims of Openstreetmap.
You would have to prohibit people from putting the data on publicly accessible
file shares or websites, send DMCA notices, stop people uploading the OSM
data set to The Pirate Bay and so on.  All in a futile attempt to make sure that
anyone who gets the data has to agree to a contract first in order to take away
rights that they would otherwise have.

Much better IMHO to rely on copyright law and other laws such as database right,
which apply whether you have signed a contract or not.  If these laws do not
exist in a particular country, well, that's a choice for the citizens of that
country.

>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.

Yes, that's exactly why I for one dislike it.  And the side-effects, such as
banning anonymous downloads of the data set (or indeed downloads by minors, who
might not be bound by any purported contract) are unpleasant too.

[click-through licences on websites]

>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... I think the proposed ODbL has all three question marks over its validity
as a contract.  You have dealt with one of them, consideration, by pointing out
that merely getting a copy of the data can be consideration - which is fine,
as long as nobody somehow gets a copy other than from the OSM website...

-- 
Ed Avis <eda at waniasset.com>