[OSM-legal-talk] legal FAQ license

[Francis Davey]

On 14 October 2010 09:07, Francis Davey <fjmd1a at gmail.com> wrote:
>
> I've not been following the detail of this discussion. One of my
> worries is that a lot of things are said - maybe off-hand - that turn
> into assumptions that feed into later discussion. Since this is an
> area of law (database/copyright) in which I practice I suppose I'm
> rather sensitive to misconceptions, but it does concern me that OSM
> might be making its policies based on what a bunch of people think,
> having chewed the matter over on a mailing list and without formal
> legal advice (and my contributions to the list aren't that - I'm not
> instructed by OSMF).

I just wanted to clarify this, in case it sounds like I am playing the
"I am a lawyer" card and implying that non lawyers are not entitled to
an opinion on any legal topic - which would of course be quite
mistaken.

What I am saying is this:

First, that in my experience the most useful and practical thing that
my clients do (and which I encourage them to do) is to think about
what outcomes they want, rather than focussing on the law. It may be
that those outcomes are very difficult or impossible to achieve
legally, but once they are clear in their mind(s) what their
priorities are, I can then advise them how much risk is associated
with different choices they might make. Armed with that advice they
can then make a final decision as to what to do.

Lawyers (and the law) should be seen as very much subservient to
policy, their job is to help you work out what you can do, not what
you should do.

Note I said "how much risk" because a lot of my work is associated
exactly with this kind of crowd-sources/online intellectual property
law and as most of you know there is not a lot of certainty about how
the law applies even the the web in general, let alone to the more
interesting uses of it. Some things are more risky than others, but if
we all wanted to be cast-iron safe, there'd be very little e-commerce.

So, the argument about what you want to achieve and what you may be
able to achieve legally aren't the same thing,

Second point, also gained from long experience, is that getting the
law right via a mailing list like this is rarely safe. That is why I
make it clear that I'm not giving legal advice (and phrase my answers
accordingly). When giving an advice a lawyer will study the problem
hard, check for any recent case law, (possibly) re-read any relevant
case law to make sure exactly what nuances of meaning there might be,
consult any academic commentary and sometimes talk to colleagues,
before giving an opinion. A mailing list answer rarely involves that
level of consideration. I expect the same is true of non-lawyers on
this list (if you do all the above, then that's impressive).

I can't tell you what to do. I'm just contributing because (i) OSM
seems as an outsider to be a great project (ii) some of the legal
difficulties presented by OSM are interesting to my legal academic
mind. This is just an attempt to share some of my experience.

-- 
Francis Davey