[OSM-legal-talk] [OSM-talk] Unsetting CT flag

[kevin at cordina.org.uk]

Nice post.  Your comparison with contributions of effort to voluntary organisations is a good one, and has changed my view on the inclusion of a clause that allows the licence to be changed.  

With a dose of AGF, and a removal of my lawyer hat, I see the point and that it really should not be an issue for contributors.  You're right, we're giving effort to the project, here it's in the form of information, not helping build a community hall, but that doesn't change the principle.

I still have reservations about whether the change ability means the CTs are compatible with other the licences of other data sources from which data may be sourced, but that is a legal one, not a policy one on which now agree with you.

Kevin

Sent from my BlackBerry® wireless device

-----Original Message-----
From: Frederik Ramm <frederik at remote.org>
Sender: legal-talk-bounces at openstreetmap.org
Date: Wed, 08 Dec 2010 03:38:50 
To: Licensing and other legal discussions.<legal-talk at openstreetmap.org>
Reply-To: "Licensing and other legal discussions."
	<legal-talk at openstreetmap.org>
Subject: Re: [OSM-legal-talk] [OSM-talk] Unsetting CT flag

Simon,

Simon Ward wrote:
> On Mon, Dec 06, 2010 at 07:58:26PM +0100, Frederik Ramm wrote:
>> ODbL is not a PD license, so you do not have to be afraid.
> 
> The Contributor Terms effectively change the licence.

My statement above arose from a discussion in which pecisk at gmail.com wrote:

"I know that ODbL team talked about changing description of "free
license", but I don't see any official statements about that. I'm
afraid that PDists got their way all over again."

I.e. he said he was "afraid" that somehow the "PDists" had achieved 
something (why he wrote "all over again" I don't know).

My point is that the license that is now on the table, ODbL, is not a PD 
license. Anyone who would like OSM to be a PD project has not "achieved" 
something.

The Contributor Terms provide a way for future generations of "PDists", 
"Share-Alike-Ists" and whatnot in OSM to take the project's fate in 
their hands, battle it out, discuss it, whatever. This is good; it is 
not a win for anyone on any side in the license debate. (The best thing 
is that nobody loses either.)

I reject outright the claim that the Contributor Terms "effectively 
change the license". They leave a door open for future improvements, for 
an adaptation to changed circumstances or a changed mood in the 
community. But that is just a chance for change, not a change in itself, 
and any future change is possible only under strict rules.

If you take an extremely individualist view then you will say: This is 
my data, I have contributed it, and I want to have every say in how it 
is used. This is not practical; you will always have to grant broad, 
general rights about your contribution to the project or downstream 
users. This is what happens today where you choose a license.

In the future we expect you to not choose one particular license, but 
instead allow OSMF, together with the active project members of OSM, to 
choose a suitable license within certain constraints.

In my eyes, this is not much different from the license upgrade clause 
in ODbL itself, only that the decision will in the hands of the future 
project, rather than in the hands of an elect few writers of the next 
license version.

I think that it is morally very questionable to try and pre-emptively 
override a future 2/3 majority of active people in OSM. Those will be 
the people who shape, who maintain, who advance OSM, and they should 
have every freedom to decide what their project does; when we tell them 
that "you cannot do X even if all of you are in favour", then "X" had 
better be the absolute essence without which OSM cannot continue under 
any circumstances.

I think that "you cannot choose a license that is not free and open" 
matches this absolute essence pretty well.

Now if someone says: "I have firm beliefs and even if OSM in the future 
has 10 million active mappers and 2/3 of them decide they want a license 
that I don't like then I want to withdraw my contribution at that point" 
(and that's what it boils down to - if we have no license change clause 
in the CT then you will have to be asked at that point) - then that is a 
very individualistic view; a view in which your data always remains 
yours, and never fully becomes part of the whole; a view in which your 
contribution is always provisional, in which you only "lend" the project 
something but not "give".

If you spend your time in, say, the local cycle campaign, improving the 
lot of cyclists, working long hours for many years, but then they 
snuggle up to a political party you don't like, then you can leave - but 
what you have contributed all those years will not be in vain, the 
effects will remain and be useful. Many people spend their spare time on 
voluntary work of some kind, and it is very unusual to have a clause 
that says "if times change and suddenly I find myself in a minority in 
this project then I want the right to retroactively remove all my 
contributions because they are mine and mine only." Neither will you 
demand a written guarantee that the organisation is never going to 
change - most will have statutes, but those statutes can usually be 
changed by a certain majority.

I am trying to take this discussion away from whether PD is better than 
share-alike and whether or not there is some secret PD campaign at work 
here trying to liberate (in their sense) OSM. I do not think it should 
matter. I don't want to engage in legal nitpicking either. I want to 
make a moral point. I belive that:

* OSM is a collaborative effort. Licenses and copyright aside, what I 
contribute becomes part of the whole and cannot, should not be viewed as 
separate. Others will use my contribution and build on it. Withdrawing 
it later means ruining their work too. OSM is not the place for "ownership".

* Any organisation, or group, or project, should be able to govern 
themselves. Those who do the work should decide.

 From these two points follows, for me, that we must allow 
OSM-in-the-future to decide what license they want to use, *without* 
threatening to remove our contribution if we don't like what they do.

Concluding, I would like to repeat that ODbL is not a PD license; and I 
think it is not right to judge the CT solely by the question of whether 
or not they might allow a future project to choose a PD license. The CT 
are about whether or not we trust the future project to be grown-up 
enough to make their *own* decisions - or whether we think that the 
minuscle amount of data we have collected (compared to what they will 
have) somehow puts us in a position where we have to dictate to them 
what they can and cannot do.

Bye
Frederik

-- 
Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09" E008°23'33"

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