[OSM-legal-talk] Would The ODbL and BY-SA Clash In A Database Extracted From a BY-SA Produced Work?

[Anthony]

On Fri, Sep 3, 2010 at 11:50 AM, Rob Myers <rob at robmyers.org> wrote:
> On 09/03/2010 03:58 PM, Anthony wrote:
>>
>> But it means, in
>> non-database-rights jurisdictions, that the extracted data isn't ODbL
>> either (unless you were dumb enough to agree to the ODbL, anyway).
>
> It does not mean that at all. If the extracted data is Substantial enough to
> be covered by copyright on the database, the ODbL applies and it is a
> Derivative Database.
>
> (I should add to all of these comments that IANAL, TINLA, etc.)

I don't think you've understood the answer given by Jordan Hatcher,
JD, LLM.  He's making the assumption that the extracted data is
"factual data".  Factual data is not copyrightable no matter how
substantial (or Substantial) the extract.  "Substantial enough to be
covered by copyright on the database" doesn't make sense.
Substantiality of factual data extracted from a database comes into
play only under database rights law.  The copyright on a database of
factual information does not extend to the factual data itself.  Or,
as codified in US copyright law, "The copyright in a compilation [...]
extends only to the material contributed by the author of such work,
as distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting material."
Facts are "preexisting material".  You can't copyright facts.

It's a great answer by Jordan Hatcher.  It rests on the assumption
that OSM consists solely of factual data (or, at least, that any
extract from a Produced Work would consist solely of factual data).
But that's probably a good assumption in many cases (e.g. tracing
roads without copying the categorization of those roads).