[OSM-legal-talk] Copyright Assignment

Francis Davey fjmd1a at gmail.com
Mon Jan 4 23:07:30 GMT 2010


2010/1/4 Anthony <osm at inbox.org>:
> Hence "not copyright assignment, but basically the same thing".  You give up
> the right to sue, and the OSMF gets the right to sue.

I hope its OK if I butt in here. I'm not a proper OSMF person, just an
interested lawyer who reads your list. However I think your
understanding of the Contributor Terms is wrong.

Here I confess that I am not quite sure what we are talking about,
since no-one has posted a link. I am assuming that we are all working
from:

http://www.osmfoundation.org/wiki/License/Contributor_Terms

Now *that* is very much not an assignment of copyright. The difference
(and the reason why its not "basically the same thing") is if you
assigned copyright in your contribution, OSMF would be able to sue
someone for violating that copyright. The Contributor Terms do not
give them that right.

What the Contributor Terms do is (i) give OSMF the usual royalty-free,
non-exclusive, perpetual, irrevocable licence with a right to
sub-licence; and (ii) grants the same licence to anyone that "receives
Your Contribution".

(i) is relatively normal (which isn't to say its the right thing to do
or doesn't have its problems). Its the kind of thing you see on google
for instance and its the kind of clause I'd use as a starting point
(perhaps for negotiation) when designing T&C's for a crowd-sourcing
site (which is something I do from time to time). It means the
licensee can get on and use the content without worrying too much
about it.

(ii) is a bit odd - its effect appears to be to nullify any copyright
in "Your Contribution" since anyone who copies it is surely someone
who receives it. It would appear to prevent anyone suing for breach of
copyright.

But nothing gives OSMF a right to sue for any copyright in anything
you contribute. If you had a database right in it, then OSMF are in
difficulty (I'm not sure why its drafted like that - but there's
probably a good reason).

What OSMF _may_ get is a database right in all the bits of
contribution that they get from contributors. I say _may_ because
database right is not a straightforward. Its quite possible they won't
have such a right, but that's another question. Database right is
infringed in different ways from copyright, but if OSMF get such a
right and it is infringed then they can sue, but that's because its
their right, not because you assigned a right to them.

>
> Or, as Michael Meeks said: "Various other methods are used to achieve the
> same effect [as copyright assignment]. Some common ones - are asking for a
> very liberal license: BSD-new, MIT/X11, or even Public Domain on the
> contribution, and then including it into the existing, more restrictively
> licensed work."

The Contributor Terms appear to be just that, a very liberal licence.

>
> If some corporation makes a large donation to OSMF, and OSMF decides not to
> sue them for something that I consider to be unacceptable use of data I have
> contributed, there's nothing I can do.  I've given them (and everyone else

Absolutely right, although OSMF might not be able to sue either. You can't sue.

> in the world) a perpetual, irrevocable license to do anything.  In the mean
> time, if that corporation wants to sue *me*, for using its data plus some
> copyrightable improvements, it's free to do so.  I can't even counter-sue as
> a defense.

That's right. If you give away something you can't complain how other
people use it.

>
> That's completely unacceptable to me.  YMMV.

What would be acceptable? It looks to me like the intention of the
Contributor Terms is much nearer to what you want because clause 3
restricts what kinds of things OSMF is allowed to do when it
sub-licenses your data to other organisations. In particular OSMF
would not be able to sublicence to %evil_organisation unless it was
covered by one of the open source licenses listed (or one selected by
members - which would have to be free and open)  which would probably
prevent them suing you.

But of course as it stands that organisation doesn't need OSMF's
licence for your data, since you have already given that to everyone.

-- 
Francis Davey




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