[OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

One issue which I don't think has been raised so far is whether the
ODBL's use of contract law as an enforcement mechanism might in fact
make it harder to enforce.

In common-law countries the remedy for breach of contract is damages.
For something like OSM which is distributed free of charge, it can be
hard to persuade a court that monetary damages are appropriate.  A
much stronger penalty is an injunction forbidding further use of the
OSM data.  However, an injunction is an equitable remedy and is not
normally available in breach of contract suits.

That is why in software licensing the question of whether a licence is
a contract or not is so important.  Perhaps surprisingly, the answer
that free software developers want in order to enforce copyleft
licences is 'no'.  They are not contracts, but grants of permission;
so if someone doesn't hold to the licence, you can seek an injunction
to stop them doing what they're doing.  By contrast if they were able
to persuade a court that the licence was a contract, all sorts of
questions arise about how far the contract's terms are enforceable,
and what is the material harm done to the copyright holder, which
determines the damages payable.

Please see <http://lwn.net/Articles/294066/> which describes the JMRI
case.  At first the district court in the US ruled that the Artistic
License (a free software licence used by this project) was in fact a
contract.  As the LWN article notes, that was bad news: to enforce the
licence effectively you want it to *not* be a contract.  Fortunately
that decision was overturned on appeal, setting a strong precedent
that free software licences (stated as permission grants) are
enforceable.

I am concerned that the ODBL throws this away by explicitly stating
that 'the ODbL is also an agreement in contract'.  Does that not
weaken the ability to take out injunctions or seek other equitable
remedies against those who violate the licence?  It would be good to
see that the OSM Foundation has taken legal advice on this point; I
don't see it mentioned in the recently sent out list of open
questions.

I fear the OSMF may be planning to eliminate CC-BY-SA permissions in
the name of stronger copyleft, but in fact not achieve that, since a
contract-based licence is more difficult to enforce.

-- 
Ed Avis <eda at waniasset.com>