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

[Matt Amos]

On Wed, Oct 28, 2009 at 11:20 AM, Ed Avis <eda at waniasset.com> wrote:
> Matt Amos <zerebubuth at ...> writes:
>
>>>>you'd happily support distributing the data under a license which is
>>>>not likely to protect it?
>
> I happily support the status quo, where map data is freely available
> under CC share-alike terms, and I see no evidence of evil mapmakers copying
> it with impunity.

absence of evidence isn't evidence of absence, and so forth ;-)

>>>I think he's asking for evidence of "not likely".
>>
>>that can be found in the "why cc by-sa is unsuitable" document. i went
>>into the first point at length, referencing some legal precedents
>>(mostly in the US). i've had several people look over and check the
>>document, including lawyers, so i'm fairly sure that the reasoning
>>isn't wrong.
>
> The legal theory sounds reasonable as far as it goes, but there is little
> evidence that there is any problem in practice.

so it makes sense to move to ODbL - then there's a sound theory as
well as no problems in practice.

> Has any lawyer in fact said to you: as things stand, it is quite possible to
> copy OSM data in the United States, redistribute it under any restrictive
> licence you want, with nothing that the OSM contributors can do about it;
> and I would give this legal advice to my clients.
>
> In my view this is very far from being the case.

of course not - lawyers don't talk like that. lawyers have actually
said to me; "CC BY-SA isn't a strong license for factual data. it
would be difficult to defend in the US and other jurisdictions where
copyright doesn't cover factual data."

from looking at the case law, both RichardF and i have come to the
conclusion that CC BY-SA just doesn't work for OSM, and that ODbL is
better (fsvo better). the science commons people also looked at CC
licenses for non-creative data [1] and came to the conclusion that:

"Many databases, however, contain factual information that may have
taken a great deal of effort to gather, such as the results of a
series of complicated and creative experiments. Nonetheless, that
information is not protected by copyright and cannot be licensed under
the terms of a Creative Commons license."

so, no - no lawyer has ever given me a statement as strongly-worded as
"i'd advise my clients to take OSM data and re-license it", presumably
because there is some risk that we could sue in NL or BE or something
like that. on the other hand, from a defensibility point-of-view, OSMF
can't possibly enforce all its rights in dutch and belgian courts -
many license violators will have no assets or presence in the EU.

if we carry on licensing CC BY-SA we may get to the state where CC
BY-SA is challenged. if the challenge is in the US, i think there's a
good chance of OSMF losing, in which case we would have to scramble to
get a new license in place. the way i see it, there are two options:
1) decide that licensing is more trouble than it's worth and PD the
lot (since that would be more-or-less the effect of losing a challenge
in the US anyway),
2) move to a more defensible license before CC BY-SA is challenged.

cheers,

matt

[1] http://sciencecommons.org/resources/faq/databases/#canicc