[OSM-legal-talk] CT clarification: third-party sources

[Francis Davey]

On 10 December 2010 02:13, Simon Ward <simon at bleah.co.uk> wrote:
> On Fri, Dec 10, 2010 at 01:16:44AM +0100, Frederik Ramm wrote:
>> As I understood it, the old CTs basically required the contributor
>> to guarantee that his contribution was compatible with the CT, while
>> the new CTs only require the contributor to guarantee that his
>> contribution is compatible with whatever the current license is.
>
> Or whatever licence takes its place should ⅔ of “active” contributors
> decide.
>

That is not what the 1.2 draft says. In fact it specifically says:

"You do not need to guarantee that it is"

That phrase is specifically there to make it clear that contributors
are not required to guarantee anything. A contributor will not be in
breach of contract (and therefore liable to OSMF for any loss it
suffers) if their contribution infringes any intellectual property
right.

The reason for that drafting (in contrast to earlier versions) is that
it was felt to be entirely unfair to contributors to expect them to
carry out a legal analysis they would not be qualified to undertake.

So on this point several people writing in this thread are mistaken.

Now, several points have been raised and its worth going through some of them:

The most general objection - which I have already dealt with at great
length and in great detail, but which may have been too lengthy and
too detailed because the question is being raised again - is do
contributors become liable to third party data set owners,
particularly if the output licence is changed by OSMF?

In general, _of course_ they do and there's nothing whatsoever that
OSMF can do about that. No term in the CT's can absolve a contributor
from liability. The best that OSMF could do was give an indemnity, but
that would balance things too far the other way.

The more realistic objection is: suppose a contributor adds data from
a third party source T having checked carefully (perhaps with lawyers)
that T will be compatible with ODbL. Later OSMF changes the output
licence, which now conflicts with T. What then? Is the contributor
giving a blank cheque?

Well obviously that depends on T. T might require anyone using data to
indemnify against any possible future misuse, assuming such a term
were enforceable, anyone using T would likely be in great difficulty.
I don't know of a T like that.

Ordinarily, T would require that certain conditions of use were met.
Provided the _are_ met at the time the contributor contributes the
data, then whatever happens later the contributor won't be primarily
liable in copyright or database right for what OSMF does afterwards.
Most open licences couldn't work any other way. You can make things
with licensed data without ensuring that they aren't misuses later.
That's not your problem.

Eg, the open government licence (UK) requires that certain conditions
are met, eg that data protection rules are not broken and that a form
of attribution is used. The contributor would be in breach of the
licence if they contributed without ensuring attribution at the time
of contribution (for instance).

But, _after_ the contributor has made their contribution, they don't
need to rely on the licence to do any act restricted by IP rights. The
contributor has ceased copying/making available to the public etc. The
contributor cannot be primarily liable after that, whatever OSMF may
do.

The only liability that the contributor could have is a secondary one.
Either by

- authorisation; or
- joint enterprise

"joint enterprise" is only likely if the contributor stays engaged and
votes, say, that there should no longer be attribution under the
output licence, contrary to the open government licence, knowing that
in doing so OSMF would be secondarily liable (in that they would be
supplying data to people who would then break the open government
licence by failing to attribute) and "joining in" with OSMF in
facilitating that.

I think "joint enterprise" is unlikely and of course impossible for a
contributor who resists any change or does not stay involved.

Authorisation is the possibility I wrote about last time. The question
is: does a contributor who contributes under CT 1.2 _authorise_ OSMF
to do acts incompatible with IP rights of others.

I don't think so.

As I said before, the CT's could be made clearer by careful rewording.

One suggestion has been that OSMF promises to remove any incompatible
data. That - in my view - puts too hight a burden on OSMF. Now OSMF is
contractually liable to the contributor if it fails to remove IP
violating data. That would put OSMF in an impossible policing position
and make it vulnerable to legal attack.

The alternative approach (which I originally suggested) of having a
cleared list of third party data and a requirement not to add any
uncleared data, has its own disadvantages such as:

- limiting the range of data that can be added
- requiring "clearing" work by OSMF

so I do not press it. If those various (and other) objections can be
dealt with then it might be worth considering, but I'd ask people
suggesting it again to try to engage with some of those difficulties
with practical suggestions rather than repeating it.

Lastly: there's no such thing in English law as a "legal" definition
in a contract. Contract construction is a matter of fact not law. You
can import legal definitions expressly if you want (from a statute
say) but there's no legal rules on what words mean. A rookie mistake
of junior counsel is to cite authorities where a word X was given one
meaning in support of its meaning, assuming this gives them a home
run. It doesn't.

So, "free and open" may not be a very tightly defined expression. Like
everything else it has fuzzy edges. Maybe too fuzzy. That doesn't make
it unenforceable. If ODbL tried to use a commercial licence which was
highly restrictive, that would violate the CT's. But it does give
quite a bit of leeway. How much leeway it should give is not a legal,
but a policy, question, which is not my area.

But again if anyone doesn't like it, they should suggest one or more
alternatives. Another helpful approach is to consider what you don't
want to happen. Eg: here is a licence I do not want ODbL to be using.

I am sorry for the length of this, but I see discussions re-treading
ground and its not helpful. To make progress we must try to build on
what has been said already.

NB: Though I am a lawyer - this is very much not formal legal advice,
just something I typed one morning. Ultimately all this can be
considered by OSMF's lawyers.

-- 
Francis Davey