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

[David Groom]

Francis,

thank you for your detailed explanation.

The position I am in is that I have submitted data which is based on 
CC-BY-SA sources, my points below are base upon this fact

----- Original Message ----- 
From: "Francis Davey" <fjmd1a at gmail.com>
To: "Licensing and other legal discussions." <legal-talk at openstreetmap.org>
Sent: Friday, December 10, 2010 8:28 AM
Subject: Re: [OSM-legal-talk] CT clarification: third-party sources


> 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 above would seem to indicate to me that I probably should not agree to 
the CT's as I would then be liable for infringing the 3rd parties licence 
terms.

>
> 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

I'm afraid I don't understand the answer to your own question. Why does " Is 
the contributor giving a blank cheque?" depend on T.  Surely the question of 
whether there IS a  "blank cheque" rests on the CT's.  What the result of 
that blank cheque may be, may well depend on T, but I cant see how the 
existence or otherwise of the "blank" cheque rests on T.


> 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.

The above would seem to indicate to me that I could agree to the CT's, as I 
would not be infringing the 3rd parties licence terms in doing so.

>
> 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.
>

Is it not possible that "joint enterprise" might be found by virtue of the 
fact that I contributed data knowing that at some time the licence could 
change to one which was incompatible with that data, and that at the time of 
contributing it (or at the time of agreeing to the CT's) I knew there was no 
technical way that such data could be identified so that it could be 
removed.


> 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
>