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

[Matt Amos]

On Tue, Oct 27, 2009 at 1:06 PM, Ed Avis <eda at waniasset.com> wrote:
> Matt Amos <zerebubuth at ...> writes:
>
> [CC-BY-SA unclear, or not permissive enough?]
>
>>>>We know for a fact that a number of people (especially people that have
>>>>asked their lawyers for an opinion) have indeed decided not to use our
>>>>data for this reason.
>>>
>>>That is certainly a good reason to switch to a simpler and legally
>>>unambiguous licence.  Have these same lawyers reviewed the ODBL and given
>>>it the thumbs up?
>>
>>Several lawyers have looked at ODbL and commented.
>
> Yes - specifically what I was asking about was whether these same people
> who decided they were unable to use OSM data under CC-BY-SA would be
> happy to use it under ODBL.  (Myself, I suspect not!)

we'll have to wait and see if they respond to the open letter. i
wouldn't want to put words in their mouths, but i suspect that ODbL
clears up a lot of the uncertainties with CC BY-SA.

>>you say simpler and legally unambiguous, but it's become clear to me
>>from my work on the LWG that it is impossible for something to be
>>simple, unambiguous and global in scope. copyright law is sort-of
>>harmonised across the world by the Berne, Buenos Aires and Universal
>>Copyright Conventions, which makes it easier to write licenses based
>>on copyrights. there's just nothing like that for mostly factual
>>databases yet.
>
> Agreed.  My inclination would be to keep things simple and stick with
> copyright - with an additional permission grant of the database right
> in countries where a database right exists.  ('You may use and copy
> the database as long as you distribute the result under CC-BY-SA, and
> grant this same database permission to the recipient.')

ODbL does exactly this: it is a copyright and database rights license,
in addition to being a contract. the contractual part is necessary
because copyright + database rights almost certainly doesn't give
enough protection in most of the non-EU world, e.g: USA.

> Clearly there is a tradeoff to be made between simplicity and covering
> every possible theoretical case where somebody in some jurisdiction might
> possibly be able to persuade a court that they can copy OSM's data.
> It seems that the ODBL optimizes for the latter.

ODbL optimises for a trade-off of simplicity and completeness. it has
been through several comment stages and, at each stage, people said it
was too complex. however, when you dig into any particular clause
you'll find that they are necessarily complex. i'm not saying it can't
be shortened - just that most of the unnecessary complexity has
already been removed. lawyers don't revel in complexity for
complexity's sake - they deal with it because it's an unavoidable part
of the legal system.

even if you were to optimise for size over coverage, you'd still want
it to work in at least the EU and USA. the EU needs the bits about
database rights, the USA needs the bits about contract. throw in the
bits about copyright in an attempt to cover that base as well; that's
the ODbL!

>>here is my rationale for moving away from CC BY-SA
>>http://www.osmfoundation.org/wiki/License/Why_CC_BY-SA_is_Unsuitable
>
> Thanks.  Those are indeed problems with the licence.  But only the first
> one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
> addressed by dual-licensing under both Creative Commons and some other,
> more permissive (and acceptable-to-some-lawyers) licence.  I would happily
> support such a move.

you'd happily support distributing the data under a license which is
not likely to protect it?

cheers,

matt