[OSM-legal-talk] ODbL, choice of law, and "porting" (and why ODC won't have a porting process)
Jordan S Hatcher
jordan at opencontentlawyer.com
Tue May 26 14:35:41 BST 2009
I'm afraid that there may be some confusion over the choice of law
clause within the ODbL (Section 10.4) and what it means for a "porting
process" for the ODbL (and by implication the PDDL).
By way of background, Creative Commons has a process where it started
out with a license closely based on US law that got used around the
world. They then were able to build up contacts in various
jurisdictions that "port" the standard CC licenses to their local
jurisdictions. This isn't a simple language translation -- it's a
drafting of the CC licenses to fit specific local law. The licenses
for The Netherlands don't just translate it into Dutch, they match the
principles to Dutch copyright and neighbouring rights law, for
example. The Scottish CC project uses the CDPA in the UK as its
baseline, and so on and so on.
After some time, CC drafted an "unported" license as a template based
on general copyright treaties so as to move away from the US license
being the "generic" CC license. Though this is becoming a popular
version of the CC licenses to use (for various reasons), even Lessig
has referred to the unported licenses as "raw" (as in "raw meat") and
pushed for use of jurisdiction specific licenses.
Even though most of the porting for each jurisdiction is done by
volunteers (I participated in the CC-Scotland porting, for example),
this process isn't free (as in beer) for both the jurisdiction and for
CC. Each version went through a process coordinated by paid Creative
Commons staff to ensure compliance and quality on the legal side --
involving the CCi team in Germany and no doubt CC's general counsel.
This is not to mention the costs for the flights for Lessig (now Joi
Ito) to fly over for the launch events, the costs of having the launch
events themselves, and any follow on infrastructure to maintain the
Looking back over this process, it's not clear (at least to me) what
the legacy is of this process. Many people use the unported licenses
(calling into question the utility of having jurisdiction specific
licenses), and as the CC licenses have gone through successive
versions, several (if not most) of the jurisdictions are behind the
I can't do a detailed review of every jurisdiction (because of
language differences and time), but a review of the English language
licenses and my understanding from CC is that a choice of law clause
is in very few of the ported licenses. In fact, Scotland may be
singular in having a choice of law clause.
An occupational hazard of being a lawyer is to always try to hedge,
even a little bit, even when the chance are really remote. So I can't
say that unequivocally Open Data Commons will never go through a
porting process similar to the one by CC. But given the cost in both
time and money that undertaking such a project would mean, as well as
an unclear set of benefits for doing so, I see the chances of Open
Data Commons doing a similar process as very very remote.
This is not to say that we won't explore and encourage _translations_
of the text, which we've done at OKF with the Open Definition.
Mr. Jordan S Hatcher, JD, LLM
jordan [at] opencontentlawyer dot com
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