[OSM-legal-talk] Q&A with a lawyer

[Matt Amos]

On Tue, May 12, 2009 at 3:17 AM, Peter Miller <peter.miller at itoworld.com> wrote:
> I have just concluded an email discussion with Jordan following our
> lawyers review of 1.0 who has answered some points but is now saying
> that he would need someone to pay him to answer more of them which
> leaves things in a rather unsatisfactory state given that I am not
> prepared to pay two lawyers to talk to each other! We have not had any
> response to the review from the OSMF council to date.

i guess its hard for him when he's volunteering so much of his own
time to answer all the questions put to him.

> So... could you help me with a couple of the points raised by our
> lawyer at your next Q and A?
> The review of 0.9 is here:
> http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO

we'd be happy to. lets discuss them now, so we've got a full understanding.

> I am particularly interested in a view of the following:
>
> Regarding point  3 could someone confirm that the Factual Information
> License has now been dumped in favour of the 'Database Contents
> License'? This is implied by the latest release candidate but hasn't
> been discussed on the list to my knowledge. It seems a lot more
> applicable but our lawyer hasn't reviewed it.

my understanding is that the FIL has been renamed to the DbCL and has
been considerably simplified. in our discussions we are no longer
talking about the FIL.

> Point 9 - Governing Law - Lets assume someone in China creates a new
> work based on OSM and claims from Chinese law that it is not a
> substantial extract. That is then used by someone in Vietnam to
> combine it would something else and manipulate it which makes it more
> like the original OSM DB and then someone in the UK uses that DB. Can
> one procecute the final UK company using UK law or would one need to
> travel to Vietnam and China to do this given that some of the
> interpretations happened under their law?

Clark agreed with your lawyer that having a choice of law is the
normal "done" thing in contracts, and suggested that we would want to
consider either US or UK law. apparently this choice of law doesn't
have an effect on the IP rights and is mainly for interpreting the
contractual parts of the license.

in the situation you describe, it is my understanding that we would
have a better chance prosecuting the final UK company under IP laws
(e.g: copyright, database rights) on the original database. given the
difference in IP laws in vietnam or china (i'm guessing) it would be
easier to go after them based on the contractual parts of the license.

one of the things i'm gaining a better understanding of, having spoken
with Clark, is that no license is ever fully watertight and we are
highly unlikely to be able to defend all of our rights in all possible
jurisdictions. in this regard i think we will have to strike a balance
with practicality and license brevity.

> Point 13. Our lawyer states that the OSMF could change the license as
> they see fit at any time, and of they can then so can anyone else who
> publishes a derivative DB as far as I can see which would be alarming.
> Can you ask who can change the license and by how much. Our lawyer
> writes: "Clauses 3.3 & 9.3 – The OSMF reserves the right to release
> the Database under different terms. It is not the current intention of
> the parties to permit exclusive use of the Database to any single
> person. However, this provision would permit the OSMF to withdraw the
> share alike and free access nature of the Database and even to sell it
> on commercial and exclusive terms. Likewise the OSMF expressly
> reserves the right to “stop distributing or making available the
> Database.”"

this was one of the questions in the write-up and was discussed again
in the second call. my feeling is that this isn't an issue for the
license, but instead forms part of the contribution agreement between
contributors and the OSMF. Ulf did some work putting a three-point
contribution agreement together and, as soon as its ready, i'm sure it
will be posted here.

the contribution agreement is something that we'll be working on in
the LWG and we'd like to have your input. discussions up to now have
focussed on the idea of the OSMF being required to hold a membership
vote before being able to change the license, although we haven't yet
gone into details of the mechanics (i.e: majorities, etc...)

i'm sure you understand the need for the OSMF to reserve the right to
discontinue hosting the database, since hosting and distributing the
database requires a great deal of resources. while these resources are
currently available, it seems unwise for OSMF to legally commit to
providing them forever.

cheers,

matt