[OSM-legal-talk] Best license for future tiles?

[80n]

On Mon, Nov 22, 2010 at 6:32 PM, Ed Avis <eda at waniasset.com> wrote:

> Richard Fairhurst <richard at ...> writes:
>
> >>It's curious that two of the strongest defences of 'strong share-alike'
> come
> >>from yourself and Richard F. - but both of you prefer public domain.  I,
> >>too, would prefer public domain over the ODbL.  What's going on?
>
> >Basically, OSM has several outspoken people who won't countenance a
> >permissive licence (e.g. Etienne and Steve). If you'd like to try and
> >convince them of the error of their ways you're a braver man than I am.
>
> 80n is also an outspoken person who won't countenance ODbL or the proposed
> contributor terms - so I don't think he weighs on the side favouring ODbL
> rather than PD.  When I spoke with him I think his main concern was
> attribution:
> 80n, is that correct?  So a CC-BY licence might be acceptable.  Would you
> as
> a 'public domain' proponent accept attribution-only as good enough?
>
> My view is that both the BY and SA elements of the current license are good
for the project.

The attribution element is good because it ensures that the contributors get
some credit.  It's the only thing they get out of it and since the whole
success of OSM depends on the kindness of contributors I think it's the
least that we can do for them.

The share-alike element is also a force for good because it enables
downstream contributions to be added back into OSM.  It ensures that
downstream users play fair with the content and prevents many inequitable
uses.

I see that OSM has thrived with the current license.  I see that
contributors and consumers understand what is expected and on the whole
comply with the spirit of the license.  Major transgressions are usually
corrected quickly and apologies made.

So that's what's good about the current license.  Agreed, there are a few
use cases where it would be nice if the license worked better (I think
Richard, in particular, suffers from one of these) but no license is ever
going to be a perfect fit.  We've seen that all too clearly from the attempt
to craft ODbL+CT specifically to our needs.

As for what's wrong with ODbL, there are many problems.  ODbL is a complex
license that is hard for the layman to understand and hard for people to
comply with.  It relies on different types of law (copyright, database right
and contract law), all of which are complex fields with very different
characteristics and nuances.  And these very greatly between jurisdictions.
There are novel elements in ODbL (in particular the belief that the database
right extends to reverse engineered content in produced works) that will
only be watertight once they have been tested in the courts.

The relationship between ODbL and DbCL is not very clear and I'm not
convinced that lawyers really understand the distinction between a database
and it's content.  I'm certain that it isn't understood by most ordinary
people.  The implications of DbCL are murky at best.

The belief that the data is the resource that needs to be protected and that
it is not currently protected by copyright law is a misunderstanding of how
existing copyright law applies to cartography.  Copyright can exist in a
work in *whatever* form it takes and a digital representation is just one of
those forms.  Cartography is fundamentally different from the data in
telephone directories and copyright in maps is a well understood and proven
principle.

Moving on to the Contributor Terms.  Well, they are just a big mistake.
OSM's content is enormously valuable.  Vesting the control of it to an
organisation which has such a poor record of good governance is likely to
make it a very attractive and easy target for some unscrupulous body.  I
fear the outcome of that.

As for the change process itself.  It is using very dubious methods to
achieve consensus and that will taint the project long after the license
change is completed.  The process itself is uncontrolled with no mentor and
no kill switch.  Everyone involved in the LWG is I believe acting in good
faith, I believe they are all doing their best to get a satisfactory
outcome, unfortunately there is nobody and nothing in the process that is
able to call time and bring it to a halt.  So it will keep trundling along
for another year or two until there really isn't anyone left to care.

In summary, my biggest concern is that ODbL will kill the project.  The
change process itself is causing chronic damage and continues to weaken
everyone's resolve and believe.

OSM is a wonderful thing.  It has succeeded fantastically and achieved what
many thought was impossible.  The current license may not be perfect but it
works damn well and we should be very careful about trying to fix something
that isn't very much broken.

80n

PS if I had to choose, with a gun to my head, between ODbL and PD for OSM
then I would opt for PD.  I just don't think ODbL is workable, at least PD
would work even if I don't agree with it.



> You're right, though, that there are others within the project who don't
> think
> a permissive licence is the right choice.  But it seems to have never been
> given
> a fair shake - it was simply assumed right from the outset that share-alike
> is
> the 'consensus', and then that was used to bring in a whole lot of legalese
> to
> close off possible loopholes, giving ODbL as the unchallengeable end result
> which
> must now be pushed through at all costs.
>
> --
> Ed Avis <eda at waniasset.com>
>
>
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