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

Frederik Ramm frederik at remote.org
Tue May 12 10:10:12 BST 2009


Hi,

Peter Miller wrote:
> 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.

I think this is a very interesting point and it does deserve a close look.

As far as I understand it, the current plan is:

* Mapper gives (perhaps "licenses") his work to OSMF under a special 
agreement that basically says "I grant OSMF the right to do whatever 
they want but they must publish this under ODbL" or so. I understand 
this agreement is currently being worked on.

* OSMF releases data under ODbL. Being the Licensor, OSMF has the right 
to authorise someone, possibly themselves, to determine which licenses 
are deemed "compatible".

* Licensees must release their derived databases under ODbL or a 
compatible license.

This introduces two degrees of freedom of license choice; one is that 
OSMF can, at any time, change the list of compatible licenses, and the 
other is that ODC can, at any time, create new versions of the license 
which would then automatically be available to anyone using OSM content 
(without OSMF having to agree).

Now Peter's interpretation is: "Since the licensor has these powers, why 
does not Fred simply take the database, publish a derived version of it 
under ODbL and say "I as the licensor hereby exercise my powers under 
section 4.4.d and decree that PD is a compatible license"?

The answer lies in 4.9 ("you may not sublicense the database"). We often 
sloppily say that "if you make a derived work you must license it under 
ODbL", but this is not the way ODbL is intended to work. The idea is 
that the original licensor (OSMF) is the sole licensor throughout the 
chain of use; and as such, only OSMF has all the rights of the licensor 
(like defining the list of comptabile licenses).

This is very different from CC-BY-SA, where each time you make a derived 
work and publish that, you are the licensee for upstream content and the 
licensor for your derived work.

I have no idea if this concept of fixing the licensor to always be OSMF 
is workable at all. Is it used elsewhere, or is it an entirely new idea? 
Consider me taking the OSM database and adding a few bits here and there 
and then publishing the derived database. Now 4.9 says "Each time You 
communicate the Database [...], the Licensor offers to the recipient a 
licence to the Database on the same terms and conditions as this 
Licence.", so my users are granted ODbL rights by OSMF; but legally, 
OSMF can hardly be the licensor for the bits that I added, can they?

Bye
Frederik

PS: Agree with Peter on the un-suitability of current OSMF legal 
framework to deal with such responsibility. Did you know that legally, 
the current OSMF board would not even have to invite their own chairman 
to their meetings as he is not resident in the UK? Read the Articles of 
Association and Companies Act for more hilarity.




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