[OSM-legal-talk] Are CT contributors are in breach of the CC-BY-SA license?

[80n]

On Sun, Apr 17, 2011 at 5:39 PM, Francis Davey <fjmd1a at gmail.com> wrote:
> On 17 April 2011 16:56, 80n <80n80n at gmail.com> wrote:
>>
>> Sorry, I was using jargon here which probably only makes sense to
>> those very familiar with the OSM context.  I'll try to make myself a
>> little clearer.
>>
>> Suppose there is a creative work that has been published with a
>> CC-BY-SA license.  Suppose I take that work and make from it a
>> derivative work.  Can I then give a copy of that derivative work to a
>> third party who insists that it is provided to them under an agreement
>> that is like the OSM Contributor Terms 1.2.4?
>
> I think I've already answered this, but to be clear:
>
> (1) obviously you can do it

I'm not clear about what you mean here.  Can you spell it out please?
What does 'it' refer to in this sentence? why do you say obviously?
And in what sense you mean can?

>
> (2) the act of contributing it is not an infringement of the CC-BY-SA
> licence, because that permits you to do all that is necessary
> (reproduce, incorporate etc)

Ok

>
> (3) CC-BY-SA does not give you the authority to sublicence under an
> arbitrary licence, so you would have no authority to give the licence
> in CT 1.2.4 or something like it and that grant of licence would be
> void as against the original copyright owner (though binding on you)

Ok, but can you explain what "void as against the orginal copyright
owner" means?  Does it mean the grant of license has no effect on the
license granted by the owner of the orginal work?

>
> (4) If you do sublicense along the lines of CT 1.2.4 then you may be
> authorising acts on behalf of the recipient which would be
> infringements of the copyright of the original copyright owner and
> that authorisation would be a primary infringement of copyright,
> actionable by the original copyright owner.

This point seems to me to be the crux of what I was trying to
understand.  But it leads to the subsiduary question, is the act of
submitting content to OSM an act of distribution or publication as
defined by CC-BY-SA?


>
> (5) The "no warranty" clause of the CT probably means you are not
> liable in contract for your inability to licence.

This seems irrelevant.

>
> Does that help?

Yes that helps a lot.

>
>>
>> In other words, if I've agreed to the current contributor terms, does
>> the act of submitting CC-BY-SA licensed content to OSM voilate the
>> terms of the CC-BY-SA license?
>>
>
> In general, yes. But not if (for example) the content that was
> CC-BY-SA licensed belonged to the person you were submitting it to
> (because then you would not be authorising any infringement of
> copyright).
>
>> As a bit of background, the process of modifying the OSM map is a
>> three step process:
>> 1) A user gets a subset of the map from the OSM web-site
>> 2) The user makes modifications to that map on their own computer
>> 3) The user gives the modifications back to OSMF via the OSM web-site.
>>
>
> OK. That is what I thought and I have no doubts that *that* is fine.
> I.e. there is no contractual problem, for reasons I have already
> explained in this message and the last one.
>
>> All content within the OSM database is published as CC-BY-SA 2.0.
>> This extends comprehensively however it is obtained.  There is no
>> special route that content takes when someone wants to edit something.
>>  They request a subset of the map (step 1) which is downloaded to the
>> user's computer where they then modify it (step 2).  This subset is
>> licensed under CC-BY-SA just like any other content from OSM and their
>> modifications are a Derivative Work.
>>
>> When user has finished modifying the map they then send it back to OSM
>> (step 3) and in doing so they affirm that the modified content is
>> granted to OSMF under a "worldwide, royalty-free, non-exclusive,
>> perpetual, irrevocable licence", or whatever the version of the
>> contributor terms are that they originally signed up to.
>
> As I said, a court would almost certainly construe the CT's so that
> the licence grant was limited to the changes made by the contributor.

This seems like an important point.  Can the changes be separated from
the original work?  If the changes cannot stand alone then they must
be based on the original CC-BY-SA licensed work and are consequently a
derivative work.

The acid test here would be to demonstrate that such a contribution
can be made with reference to the original work.  If it can then it is
clearly not a derivative work, but if it can only be made when the
user has a copy of the orginal work then surely it must be a
derivative?  Or is there some other criteria that would better define
/ describe a derivative work?

>
>>
>> It seems to me that the CTs get in the way of the loop that is
>> supposed to exist that permits someone to get OSM content, modify it,
>> and then give it back.  If the content in this loop is CC-BY-SA
>> licensed then putting up a CT gateway or barrier would appear to break
>> that loop.
>
> No. Although there are difficulties with the CT's if you want to
> incorporate data from other projects, the CT's do not create this
> prohblem. I understand your reasoning, but a court would not construe
> the CT's in that way.
>
>>
>> I mean a *really* different license, one such as CT 1.2.4 which is
>> known to be incompatible with CC-BY-SA 2.0.
>
> Right. Hopefully I've made the situation clear.
>
>
> --
> Francis Davey
>
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