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

Ed Avis eda at waniasset.com
Mon Oct 26 18:29:25 GMT 2009


Frederik Ramm <frederik at ...> writes:

>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).

> However, you are wrong in alluding that there is a choice:

>It is quite clear (at least to me) that our data cannot be protected by 
>copyright alone;

This is where I disagree (or at least, am unpersuaded so far) since I
haven't seen any hard evidence that copyright is inadequate.  If this were
the case, then there would be no need for anybody to give permission for
relicensing, since under the current copyright-only setup anybody (including
the OSMF) could just take the data and relicense it under the terms they want.

>but if our data is not protected by copyright, and if 
>the jurisdiction in question does not have a "sui generis" database law,

I would say that in this case, the wise citizens and parliament of that
jurisdiction have decided that map data should be free, and good luck to them.
After all the purpose of the OSM project is to have freely-available map data;
if a law were passed tomorrow putting all maps into the public domain it would
be most odd for OSM to start fighting against it.

However, I recognize that this is a matter of opinion, not fact, and there
must be those within the project who think that we should try to override
national law in favour of stronger protections, just as EULAs for computer
software attempt to override legal rights to reverse engineering.

There is still the small question of whether any such place exists.  Again,
is there any evidence (rather than just repetition of the same opinions)
that in some country, OSM data is effectively in the public domain?  And is
that country significant enough to make it worth imposing a new, contract-
based licence on the rest of the world just to address this 'problem'?
What harm would it cause in practice if Elbonia did not recognize copyright
in maps?

>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.

That's interesting.  However the ODBL also claims to be a copyright licence,
while acknowledging that what is copyrightable varies between jurisdictions.

-- 
Ed Avis <eda at waniasset.com>





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