[OSM-legal-talk] [OSM-talk] ODbL vs CC-by-SA pros and cons

[Francis Davey]

On 29 August 2010 23:41, Eric Jarvies <eric at csl.com.mx> wrote:
>
>
> Eric Jarvies
> Sent from my iPad
>
> On Aug 29, 2010, at 3:10 AM, "jamesmikedupont at googlemail.com" <jamesmikedupont at googlemail.com> wrote:
>>
>> unless the work is copyrighted or copylefted as well. What right does
>> Y have to the data to begin with? under copyright law, he has no
>> rights.

Let me try to clarify what I am saying:

Whether or not someone contributing data to OSM has any IP rights in
that data, or whether the OSMF (or anyone else) can exercise any
rights over data that has been included in OSM or indeed the whole of
OSM, depends on (i) jurisdictional questions and (ii) the nature and
quality of the data. There are relatively complicated questions of
copyright law at work. The fact that the courts have been deciding
questions on copyright in compilations/databases illustrates this.

But that's not important for what I'm saying. If OSMF can us IP rights
to stop people using part or all of OSM in any particular jurisdiction
then you don't need any additional protection (you already have it).
In my example Y could be restrained by injunction or otherwise pressed
to stop.

As I understand it the desire of the new licence scheme is to
supplement IP protection by using a contractual mechanism. It answers
the questions: "what do we do about jurisdictions where there is no
protection"? Some places are generous about copyright (England for
example has a really low threshold of originality in general, and so
before the database directive was about as generous as they come) but
others are not. Some places have a specific database right (like the
EU) but most don't.

So one of the points that seems to be in issue is whether there needs
to be a contract style protection or not. People seem to be asking "do
we need this?".

My point - in answer to someone who suggested it might just be an
implementation detail - is to try to explain that it isn't. The
contract bit of the new licence won't protect you in the same way as
copyright law + licensing does. It has no automatic way of applying
sanctions to third parties like Y in my example. Sure *if* Y can be
stopped another way, then great, but the contractual element is not
needed.

I'm not arguing that using contractual protection is wrong or
ineffective. My vague impression is that lawyers were asked to come up
with something to fill the gap left by the lack of legal protection
for databases in some places, and this is what they came up with. I
suspect that it is pretty much the best you can do.

And its not quite as bad as all that. If Y and X collude to get the
data out, the fact that Y is not a contracting party may not help
them. Most jurisdictions have protections against that sort of thing
(eg as "conspiracy" or "tortious inducement of breach of contract" in
English law) but mileage varies even more as you might imagine and it
makes things more difficult. The USB drive example is a good one
because X and Y would not be connected (though of course Y would
probably be a thief, or at least a tortfeasor of some kind, in taking
the stick).

I have a deep academic and professional interest in the copyright and
other legal questions raised by what you are doing, which is why I
read and occasionally contribute to discussions on this list. I'm not
myself a mapper and so have no right to try to influence what you do.
I hope no-one objects to my occasional comments. All I am trying to do
is inject some legal clarity as much as I can.

Of course its generally not a good thing to be doing legally
interesting things, but take heart from the fact that people have been
litigating copyright in maps one way or the other for centuries.
There's an early 19th century case in which our Lord Chancellor was
surprised that you could copyright a map (after all - its just factual
information about "the world" where's the originality in that?) but
conceded that the weight of authority was that you could. When I was
preparing a talk on copyright in images I wanted to illustrate it with
a map of the area in question and of course OSM so thanks for that.

>
> Y has everything to do with the data, in the context explained above. The point is; it is already difficult(and expensive, time consuming) to defend rights on said data, it will become even moreso.
>

A slightly sharper way of putting it is that using the additional
protections given by contract may add complexity to any legal action
you take. In practice its usually nice to have more causes of action
to plead, if done well it can put the frighteners on the defendant.

-- 
Francis Davey