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

[Frederik Ramm]

Hi,

Ed Avis wrote:
>> 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.

No, that would be great.

My personal belief is that OSMF is going over the top with this whole 
share-alike thing. ODbL may be a working license, but the question 
whether we want or need share-alike to achieve our goals is a wholly 
different one - a question where from day one we had a small but vocal 
number of project members saying that share-alike is a must, and OSMF 
never had the balls to question, or even challenge, that. Indeed, the 
very first "official" statements from OSMF already contained what is 
still the official chicken wording today: "[A PD license is] unlikely to 
be adopted by all.", or "unlikely to be palatable to many OSM contributors".

What this has in effect done is given them (the OSM contributors who are 
against public domain) a veto right - without even counting how many of 
them there are.

Which is strange, given that it is near certain that ODbL will "not be 
adpoted by all" and "not be palatable to many OSM contributors" (simply 
because there are so many to start with). With the ODbL this does not 
seem too important - if push comes to shove we're willing to delete and 
re-create data which is not re-licensed by the respective contributors; 
but for the PD cause, the fact that there were hardliners unwilling to 
agree was used as the reason for not pursuing this.

I'm happy that the license working group has done a lot of work to 
present us with the best possible share-alike license for our data. As 
Matt concedes, this license still has weaknesses, some of which may be 
fixable at a later date, and others may just be results of trying to be 
free and enforcing something at the same time.

We are now at a point where we have a clear alternative; go ODbL, or go 
PD. (Or stay with CC-BY-SA but I really think that sticking to the 
CC-BY-SA is more an expression of wishful thinking that anything else.)

PD, of course, has weaknesses too. Still I'm inclined to think that the 
problems and weaknesses incurred by PD will hurt less than those 
incurred by ODbL. PD is easy to understand, provides maximum usefulness 
of our data in all possible circumstances, and requires absolutely zero 
man-hours of work tracking down "violators"; creates no community 
friction because over-eager license vigilantes have to be reined in; 
poses no risk of seducing OSMF to spend lots of money on lawyers; allows 
us to concentrate on or core competencies.

But to get back to your initial sentence; if OSM were proven to be 
copyright-free because it contains only factual data, then any factual 
addition to OSM would probably be copyright-free in that country as 
well, but if we then take that and put it back into OSM, maybe the 
author would sue us in another country (he extracts the data in the US 
where this is free, then transfers it to the UK, then enriches and sells 
it; we take it, upload it, he sues us in the UK - something like that).

It's a mean world out there and if someone wants to create trouble for 
us they will always find a way.

Bye
Frederik