[OSM-legal-talk] ODBL enforcement: contract law and remedies
Ed Avis
eda at waniasset.com
Wed Oct 28 12:20:33 GMT 2009
Matt Amos <zerebubuth at ...> writes:
>>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
If someone is taking OSM data and misusing it secretly, then they would
be able to continue doing that whatever licence was chosen. So we only
need to consider cases where a violation becomes publicly known.
>>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.
It's an argument in favour of moving. I don't agree that it outweighs the
costs of moving, or the loss in no longer having map data available under
a Creative Commons, non-EULA licence.
(I did raise the question of whether ODBL is in fact less enforceable, since
it claims to be a contract, which would make injunctions difficult to get.
Apparently this issue has been taken into consideration by the lawyers.)
>>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,
>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."
While that is a long way from 'yes, you have a straightforward way to sue',
it is also very different from 'no, it's clear that your licence is
unenforceable'. The issue is a shade of grey and the question is just
what shade is enough.
>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.
Indeed. And isn't that enough deterrent? Are we really up against some
Dr Evil figure with an unlimited legal budget to try every possible way
to make illicit copies of OSM data in some jurisdiction?
Isn't the reality that no company would ever consider it worth the legal
risk to start appropriating OSM's data, even in the USA?
>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.
There is something a bit wrong with this argument, IMHO: the OSM
project does not exist in order to enforce certain rights. It exists
to provide free map data to the world, and enforcing share-alike terms
is a means to that end. We need to enforce just enough of the project's
rights to promote the free availability of maps, not strive to close
down every possible legalistic opening.
>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,
Would that be such a disaster? If such a precedent were set, then any
factual data derived from OSM would also be in the public domain in that
country, and could be shared freely and incorporated into the project,
giving just the same result as if CC-BY-SA were in force. Indeed one way
to think about CC-BY-SA (apart from the attribution requirement) is that
it tries to simulate a situation where all content is in the public domain.
--
Ed Avis <eda at waniasset.com>
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