[OSM-legal-talk] Questions about CTs 1.2.4

[Robert Whittaker (OSM)]

On 13 April 2011 23:06, Francis Davey <fjmd1a at gmail.com> wrote:
>> Clause 2 is a grant for certain rights. From previous discussion here,
>> can I assume that I can agree if I'm not the copyright holder, and
>> that I only grant the rights I can under the licence I received the
>> data under?
>
> That depends very much on the licence, but for many licences the
> answer will be no. For example most CC licences don't give you the
> right to grant such a licence.

If I'm reading what Francis has written correctly, this would seem to
be a very real problem with CT 2.2.4, which would prevent us using
almost any source which wasn't PD or for which the contributor didn't
own the copyright. In particular, Francis is saying that we can't make
use of CC-By or ODbL sources because of clause 2.

>From the caveats in clauses 3 and 4, I guess that the intention is
that you should be able to use eg CC-by sources (although it's
questionable whether or not downstream attribution is guaranteed under
ODbL, and the possibility of a future license change is also
problematic). Nevertheless, I don't even think that an agreement by
OSMF to only use the Contents in a manner which is compatible with a
given source license gives you the ability to make the broad rights
grant in clause 2, unless the license specifically allows such a
grant. (A CC-By license does not say that you can give a third-party
the right to do "anything restricted by copyright" as long as they
only use those rights in certain ways.)

I though a previous version of the CTs (possibly 2.2.3) had an
additional phrase in clause 2, along the lines of "to the extent which
you are able" which I thought was designed to address this point. My
interpretation of it was that it allowed you not to have to make the
grant for parts of the submitted contents which were under a license
that didn't allow it. The CTs then relied on clause 1 to ensure (as
much as possible) that the Contents at least allowed OSMF to
distribute them under the currently chosen license.

Could someone from LWG please confirm the intention of clause 2 and
what their legal advice is on our ability to add data from CC-By
and/or ODbL sources under clause 2? Why was the extra phrase removed
for this new draft?

Thanks,

Robert.

-- 
Robert Whittaker