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

[Ed Avis]

Matt Amos <zerebubuth at ...> writes:

>>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.
>
>my point was more like "there's no evidence yet". just because it
>hasn't happened doesn't mean it isn't going to happen.

OK.

>Dr Evil doesn't need an unlimited legal budget - he just needs to live
>in a country where non-creative data isn't copyrightable.

...and in a country where it is crystal clear that the OSM data is
'non-creative'.  That point is far from obvious to me.

Even in the USA there is certainly enough meat in OSM for a straightforward
copyright infringement case, IMHO.  If it were a collection of pure facts
with no expressive content and no scope for imagination or judgement then
I would agree that trying to enforce share-alike with CC-BY-SA is problematic.

>if we just wanted to give maps away for free then we'd PD it. if we
>want stronger copyleft than that, then we have to start thinking about
>enforcing those copylefts.

Yes.  But if enforcement comes at a cost, you must trade off how much
legal weaponry you want against the disadvantages of a more complex or
(in some ways) more restrictive licence.  I lock the door of my house,
but it is not a worthwhile tradeoff for me to install barbed wire fencing,
searchlights or a moat.  Even though there is a theoretical possibility
someone could break in, the deterrent of a locked door is sufficient in
practice.  Even though the fact that something hasn't happened in the past
does not guarantee it won't happen, I can use the past few years of
experience as some justification for saying the current deterrent is enough.

The question to ask is not 'is our legal framework absolutely watertight
in smacking down anyone, anywhere in the world, who violates the licence'
but rather 'is it a strong enough deterrent in practice to make sure that
share-alike principles are followed and promote free map data'?

>>>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,

>PD isn't viral - any factual data derived from OSM might well be
>protected by other IP rights (e.g: database rights) reserved by the
>deriver.

In the particular case of the US, there is no database right.

>additionally, there's the difference between what CC BY-SA requires
>you to share and what ODbL requires you to share. sure, CC BY-SA might
>keep the tiles in the "free domain", but it doesn't keep the data in
>the free domain.

This depends on what exclusionary rights OSMF and the contributors have
over the data, which is what we are discussing.

If the data is subject to copyright then yes, CC-BY-SA does keep it free.
If copyright does not apply and there is no database right to consider,
then CC-BY-SA does not work, but I doubt that any other licence would.
You can try making a contract or EULA as the ODBL does, but that is flaky;
if the data is truly in the public domain, then courts are unlikely to
accept that adding any amount of legal boilerplate will change that.

If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness
and enforceability, you should do the same for ODBL.  I don't think that
is always the case here.

-- 
Ed Avis <eda at waniasset.com>