[OSM-legal-talk] license change effect on un-tagged nodes

[David Groom]

----- Original Message ----- 
From: "Jaakko Helleranta.com" <jaakko at helleranta.com>
To: "Licensing and other legal discussions." <legal-talk at openstreetmap.org>
Sent: Monday, July 04, 2011 8:42 PM
Subject: Re: [OSM-legal-talk] license change effect on un-tagged nodes


> On Mon, Jul 4, 2011 at 12:53 PM, John Smith <deltafoxtrot256 at gmail.com>
> wrote:
>
>> The position of nodes are often derived from the position of other nodes.
>>
>
> "Nothing of me is original. I am the combined effort of everyone I've ever
> known." (1)
> and hence the secret of
> "Creativity is knowing how to hide your sources" (2)
>
> On a more serious note:
> I think it's important to remember that there's a difference between
> (a) that the creation of something (B) has been influenced by something 
> else
> (A), even more directly impacted by A,
> (b) that B is derived from A, and finally,
> (c) that B is a derivative work of A.
>
> I was involved with publishing (student) song books (in Finland) when I 
> was
> younger and we needed to do some wrestling to get the publishing rights
> (without getting fined, not to mention take-down/pull-out demands) for a
> number of (student) songs the lyrics of which were not only clearly
> influenced by copyrighted song lyrics but were quite clearly derived from
> them.
>
> At the end of the day we couldn't publish one song which was deemed a
> derivative work but at the same time we were able to successfully get
> publishing rights for many because they were _not_ seen being derivative
> works even though there was a pretty clear link with many of them to the
> original song.
>
> In the mapping scene or any other international project there's obviously 
> a
> major difficulty in the fact that different countries laws / tradition 
> treat
> these issues differently. But the basics are nevertheless the same, I
> _guess_. Surely OSM can't rely on guessing so it makes sense to be safer
> than sorry. But it IMHO it doesn't make sense to try to be "holier than 
> the
> pope", so to say.
>
> But nevertheless _I_ would say that copyright/IPR-wise there's 0% left of
> anything protectable if (1) someone's e.g. traced a road from imagery, but
> has only marked it with, say, highway=road (meaning he states that he has 
> no
> clue of what kind of road/path/track/river?/ditch/wall/other it is) and 
> then
> (2) I go to survey the road with GPS, upload the trace (or even simply
> overlay it with existing data in JOSM) and then tweak the road according 
> to
> my trace+observations + tag it approriately. And I say that this holds 
> true
> even if I'd leave a few nodes untouched (because they happened to be where
> my trace was).
>

Leaving aside the legal / moral validity of the statement "I say that this 
holds true even if I'd leave a few nodes untouched (because they happened to 
be where my trace was)", there is a practical problem with your example.

In your example you give the reason the nodes were untouched as being  "they 
happened to be where my trace was".

In reality we wont know why these nodes were untouched.

They may have been untouched because:

(I) they happened to be where your trace was
(ii) they were simply missed when you did the tracing in the area of your 
GPX track
(iii) the way was a long way and some nodes were outside the area covered by 
your GPX track.
(iv) other reasons.

By virtue of the fact the node is untouched we know there will be no 
information attaching to the node to describe why its position was not 
moved, so we cant make any assumption about it.

> Now, surely some jack-ass lawyer could claim that a single (or the few)
> node(s) that I didn't touch creates a copyright violation and sue me. I
> could only say: please do.

I presume you are here refering to the copyright of the way containing the 
untouched nodes.

What percentage of untouched nodes on a way would you consider safe to use 
when determining whether the way contains no copyright from the original 
mapper?

Regards

David


>But I know s/he wouldn't. My work could very well
> be said having been derived (to an extent) from the original work -- but
> would certainly not be a derived work. (And someone may well disagree with
> that, and I appreciate that opinion. But I could bet my head on it.)
>
> Having said the above it's obviously a different thing that how OSM as a
> community wants to or even should handle various different situations
> regarding license change and dealing with data from non-complient sources. 
> I
> just wanted to note what I think holds very true; that there's a 
> difference
> between being derived from (to an extent!) and being a derivative work (as
> seen by law).
>
> Just my 2 cents,
> -Jaakko
>
> (1) Chuck 
> Palahniuk<http://www.goodreads.com/author/show/2546.Chuck_Palahniuk>
> (Invisible Monsters <http://www.goodreads.com/work/quotes/849507>)
> (2) Albert 
> Einstein<http://www.goodreads.com/author/show/9810.Albert_Einstein>
> (misquoated to him, it seems)
> --