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

Peter Miller peter.miller at itoworld.com
Tue May 12 08:34:27 BST 2009


On 12 May 2009, at 04:13, Matt Amos wrote:

> 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.

Sure, and it makes your work here all the more important - thanks
>
>
>> 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.

Ok, that is good (and it is also clear from the ODC website) however  
we did not reviewed it. We will look at it again.

>
>> 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.
>

The governing law issue is clearly an either/or. We either use the un- 
ported version, or a nominated jurisdiction, we can't do anything in  
the middle! Jordan is keen on un-ported one, our lawyer strongly  
advocates a nominated jurisdiction and so does does Clark. Clearly  
this is something we need to make a decision about.


> 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.

I agree it is all about shades of grey and we have to try to make it  
more black and more white but won't succeed totally.

>
>
>> 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.

However.... if the OSMF can change the license and given that it is a  
viral license then surely anyone else can also change the licensing of  
any derived database? Our lawyer mentions that the OSMF could 'sell it  
of commercial terms' or make it available to a single person. If this  
is true then why can't anyone else do the same. I really don't  
understand the legal mechanism being used for this and need to look at  
it more closely.

> 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...)

Ok, so we seem to be heading for a position where the OSMF is the  
critical aggregator and publisher of the main DB and has significant  
powers to make changes to terms etc. If this is the case then the  
article of association and all sorts of other things need to be  
improved to avoid the risk of 'carpet baggers' (see http://en.wikipedia.org/wiki/Carpet_baggers#United_Kingdom 
  for details of how mutual building societies got ripped apart for  
cash). OSM is already valuable and will only get more valuable and  
there would be considerable gain from 'privatising' it and care is  
needed at this point to avoid it.

>
>
> 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.
>

It may well be reasonably to allow the OSMF to discontinue hosting the  
database, however I believe that it should in that situation be  
required to make the whole database available free of charge to  
someone/anyone who will host it.  What we must not allow is for the  
OSMF to be able to morph into a for-profit company where the terms of  
service allow it to profit from the brand name, the full database, the  
regular contributors and a dominant market position. This has happened  
before with open source projects and is not pretty or for the wider  
benefit. Our lawyer has already pointed out some areas of weakness in  
the articles of association for the foundation. I will put that review  
on the OSM wiki soon.

However... lets try to keen the ODbL/ODCL issues clearly distinct from  
our own issues (contributor agreements, articles of association etc)  
which we as the OSM project need to resolve. Possibly the OSM related  
issues should have a separate set of wiki pages in the category  
'foundation' to make the distinction very clear indeed.


Regards,



Peter



> cheers,
>
> matt
>
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