[OSM-legal-talk] ODBL enforcement: contract law and remedies
Frederik Ramm
frederik at remote.org
Mon Oct 26 18:12:10 GMT 2009
Ed,
the question "what avenues do we have open if someone breaches the
contract" has been discussed on legal-talk, for example in this thread:
http://lists.openstreetmap.org/pipermail/legal-talk/2008-February/000637.html
I don't know if the License Working Group have pursued this further in
the mean time; at the time, we arrived at roughly the same conclusion
that you did (we can sue them for damages but if there are no damages
then there's no case). Someone brought up the idea of "punitive damages"
but I don't believe in it.
So yes, this is a weak point - the whole contractual element of the ODbL
is a very weak point indeed as it is very conceivable that violators
will claim they never entered into the contract in the first place.
However, you are wrong in alluding that there is a choice:
> 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 is quite clear (at least to me) that our data cannot be protected by
copyright alone; but if our data is not protected by copyright, and if
the jurisdiction in question does not have a "sui generis" database law,
then we do not have the option to build a "permission based" license
because nobody needs permission to use our data!
So, and that takes us back to RichardF being quoted in the posting cited
at the beginning, the ODbL at least *tries* to use all avenues open to us.
The Science Commons people, righly, say that it is morally doubtful to
claim copyright where none exists, and I think in this vein the ODbL is
morally superior to CC-BY-SA for OSM data, because the latter is based
on copyright which in all likelihood does not exist for OSM data.
Bye
Frederik
--
Frederik Ramm ## eMail frederik at remote.org ## N49°00'09" E008°23'33"
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