[OSM-legal-talk] Free and open (Re: CT clarification: third-party sources)

[Simon Ward]

[I’ve followed up Francis’ post, but also quoted from another
sub‐thread, because I think his post includes a response to that.]

On Fri, Dec 10, 2010 at 02:17:50AM +0000, I wrote:
> If there’s any ambiguity, I’d rather remove as much of it as possible.
> This includes being precise about the possible licences, especially as
> “free” or “open” isn’t to my knowledge legally defined.

On Fri, Dec 10, 2010 at 08:28:31AM +0000, Francis Davey wrote:
> 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.

Fine, but shouldn’t the parties to the contract at least agree what the
terms mean, especially those that may be less obvious to another should
there be any dispute?

> 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.

I would be happier if it pointed to a definition of “free and open” that
we can agree on akin to the Free Software Definition.  I don’t believe
it guarantees enough freedoms to the next person, but I would be happier
if the Open Knowledge Definition were explicitly referred to:

http://www.opendefinition.org/okd/

Simon
-- 
A complex system that works is invariably found to have evolved from a
simple system that works.—John Gall