[OSM-legal-talk] ODbL: Click-Through required?

[Frederik Ramm]

Hi,

    a major issue that we have debated last year was whether or not 
applying ODbL to OSM would require some sort of click-through. I believe 
that this is one of the issues where anyone who is asked to vote yes or 
no is entitled to know exactly where the OSMF stands on the issue.

To give a bit of background for potential newcomers; the idea is that in 
such jurisdictions where there is no database law, the ODbL works as a 
contract between the person offering and the person receiving the data, 
where the person receiving the data affirms that they will adhere to 
ODbL. Which, in turn, would mean that they may only pass the data on to 
people also affirming their use of ODbL and so on.

This leads to two theoretical problems:

1. Is it sufficient to have a note saying "by using our data you agree 
to ...", or do we need to have an explicit "click here to agree"? The 
latter would be extremely tedious for some applications (e.g. mirroring 
of planet files and so on). Even API read requests would require an 
account and all that. Steve Coast suggests in

http://wiki.openstreetmap.org/wiki/Open_Data_License_FAQ#Will_this_change_how_people_access_OSM_data.3F

that: "... it is likely that anonymous download of the data via the API 
will not be permitted as present. Anonymous download of data will still 
be possible, but only via a licence acceptance click-through on the OSM 
website. Access to the planet files will receive similar treatment and 
future planet files will contain details of the licence.", however this 
statement is 13 months old and may or may not still be current.

I raised the same issue on

http://wiki.openstreetmap.org/wiki/Open_Data_License/Open_Issues#What_happens_in_places_where_there_is_no_database_directive.3F

and Mike Collinson commented that:

"... I think that the assumption is that the contract is implicit - you 
do stuff with the data, you accept the contract.", adding that "the cure 
for breach of a contractual situation is typically how much money did 
the Licensor lose (open Licensor = none)".

My personal thinking is that a fully click-trough is near impossible to 
implement and would pose a major inconvenience at the very least (no 
"data layer" without first registering and agreeing to the license...), 
and I very much like Mike's reading which would amount to us putting 
some <license> tag in our XML and be done with it.

I would, however, hope that OSMF issue a statement that either says "we 
will request all users to agree to the license and we will only make 
data available to those who agree", or says "we will ask everybody to 
install proper <license> tags and that's it".

2. If the chain is broken (by not displaying the click-wrap or by 
removing the <license> tag or so), then while the violator has clearly 
done wrong and can be sued, any user "downstream" of him can legally use 
the data without restrictions, because he has not entered a contract.

This is probably something that cannot be helped in either case, but it 
is something that needs to be assessed and documented. What will we do 
if this happens? How likely is it to happen? Will it cause damage to the 
project?

Bye
Frederik