[OSM-legal-talk] New phrase in section 2

[Francis Davey]

On 7 December 2010 22:10, andrzej zaborowski <balrogg at gmail.com> wrote:
>
> Thanks for the explanation.
>
> Would you agree that the sentence "You do not need to guarantee that
> is is, but [...]" is not having any effect then?  It might have an

No. Its purpose is to expressly state that the contributor does not
guarantee to OSMF that it would be lawful for OSMF to licence the
data. Earlier versions asked the contributor to give a warranty that
the contribution was free of others' IP rights. My understanding is
that that was felt to be unfair to contributors (who are after all not
lawyers).

What it does not do is prevent the contributor from being liable to
third parties in some way. *That* would be difficult to do since its
not in OSMF's power to absolve the contributor from any liability they
might have.

So the existing state of affairs is:

- contributors contribute at their own risk, if the act of
contributing is itself an infringement, that's their problem
- OSMF assumes any risk of publication of that data and cannot sue a
contributor if they wrongly contribute data which later turns out to
be incompatible with one or more of OSMF's licences
- whether a contributor could be liable for some kind of secondary
liability is very difficult to say since IP laws vary worldwide and so
do third party licenses, my sense is that the risk is small since the
wording is not easily compatible with the idea of authorisation

In particular the "you do not need to guarantee..." looks to me to
count against authorisation. If the contributor did guarantee that
would look more like authorising OSMF to do what it should not do.

As I said, some reasonable obligation on OSMF to try to avoid IP
violations might do the trick. But you want to be careful about
imposing too onerous a duty on OSMF.

> effect of discouraging or encouraging some action (but as I see it,
> it's encouraging the wrong thing).

What do you suggest? The only practical option I can see is for OSMF
to supply a list of approved third party licenses that are
"compatible" with OSMF and refuse anything not licensed under one of
those.

>
> I guess that it might have an effect where contributing incompatible
> data in the proposed wording doesn't terminate the contract between
> contributor and OSMF, while without that sentence the OSMF could tell

I'm not sure what you mean by "terminating". Breach of contract does
not ordinarily terminate the contract. Even a fundamental breach
doesn't necessarily do so.

> a contributor "our contract wasn't valid because you had submitted
> data that was incompatibly licensed on this and that day".
>

No. That isn't how English contract law works.

The current wording is intended to imply (sure its not express, but
the goal is fairly short wording I understand it) that OSMF doesn't
have any obligations to relicense the data if it would be unlawful.
That's what 1(b) does. 1(a) does a different job.

>
> I think my doubt was the following: if a contributor uploads contents
> of a third party database that is ODbL 1.0 licensed, to OSM; OSM then
> changes its license and keeps distributing the third party contents,
> then if the contributor is not liable for the damage that the third
> party may suffer, who may be liable?

I think it would be an enormous stretch for any IP owner to try to
show secondary liability on the contributor in that case. Its
something that could be nailed down even further of course. If I was
drafting the contributor terms with certainty (rather than brevity) in
mind, they'd be much much longer and there'd be no doubt in anyone's
mind what they did - that is in the mind's of those who bother to read
contracts and that is the problem.

-- 
Francis Davey