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

[andrzej zaborowski]

On 7 December 2010 23:43, Francis Davey <fjmd1a at gmail.com> wrote:
> On 7 December 2010 22:10, andrzej zaborowski <balrogg at gmail.com> wrote:
>> 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).

Ah, I guess this makes sense although it didn't compute for me because
if it's difficult for the contributor to guarantee that the license is
compatible then it's even more difficult for OSMF who won't even know
the origin of the data.  (So if some data ends up being licensed by
OSMF it'll be difficult to point to the basis on which it was decided
to be ok (other than optimism).  But from your explanation I
understand that the OSMF is most likely to receive the blame for
distribution of the content that is against the license given by the
original author)

>
> 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.

Of course.

>
> 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.

Yes, but you also want someone to be on that duty in the end (or maybe
that's not needed, I don't know).

>
>> 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.

Ah that's not what I mean.  Just that that sentence to me initally
read as "we allow you to contribute any data (possibly despite what
others say), although we may remove it", but I see this is just me.

>
>>
>> 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.

You're right, I now see that there's nothing about termination in the document.

>
>> 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.

So the answer is that most likely the OSMF may be liable.  I'm
interested in this because I have submitted data collected by other
people and now they may grant me an ODbL license on it (in addition to
CC-By-SA) so that I can accept the contributor terms (and in the
future they may grant another license if needed), but I was trying to
see who from their point of view should be blamed if the data ends up
used in a way they didn't want it to be used.

Cheers