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

Tue Jul 5 15:46:27 BST 2011

> ----- Original Message ----- 
> From: "Jaakko Helleranta.com" <jaakko at helleranta.com>
> To: "Licensing and other legal discussions." 
> <legal-talk at openstreetmap.org>
> Sent: Tuesday, July 05, 2011 2:24 PM
> Subject: Re: [OSM-legal-talk] license change effect on un-tagged nodes
>
>
>
> David,
>
> My point was to note that being influenced by, being (somewhat) derived 
> from
> and being a derivativer work are all different things. Period.
>
> Additionally I wanted to describe an example where one mapper goes about 
> and
> produces a simple yet copyrighted work (via arm-chair mapping) and then 
> one
> (or more people both add the necessary details for the trace to actually
> become a useful map object _and_ they also change/finetune most of the
> object geometry (including quite possibly cutting the rd some places where
> there in fact isn't a rd etc). And I stated for _that example_ that the
> amount of copyright left (term most probably not existing) is next to
> nothing for the original tracer; escecially if/when one or more ppl have
> also used their collected gps traces + new imagery to tweak the geometry.
> So, in the light of license change (or even copyright violations --  
> tracing
> originally from faulty sources) the fact that the 1st "creator" doesn't
> agree to the license anymore (or didn't have right to use the original
> source) will have gotten diminished (if that's any proper expression) at
> _some_ point.
> Period.
>
> Yes, theoretically there is some "creative input" left in the work, even
> some derivative, at least a touch of influence. And in practice some
> wonderful lawyer or a kind fellow mapper for that mapper could make a fuzz
> out of things, even sue.
>
> But strongly think that:
> (A) there wouldn't be a case.
> (B) the moral rights left would have been vanished at _some_ point.
>
> So u ask: "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?"
>
> I don't know. Perhaps 1.324%?
>
> As per my description there isn't a formula ("at _some_ point"). Would b 
> gr8
> to have one but such doesn't exist.
>

Agreed it certainly doesn't exist at the moment.

Since we are now in Phase 4 of the implementation plan [1], and part of 
phase 4 is "Start of technical work to publish the first ODbL-only database. 
" then at some stage soon (arguably before now) this discussion will have to 
move beyond a theoretical discussion to a practical one. Either:

(i) there will be an automated process to remove certain ways / nodes which 
are deemed to be incompatible with CT/ODbL/DbCL, in which case a formula 
will have to be arrived at ; or
(ii) every way / node which has not got a complete chain of acceptance for 
CT's will have to be individually looked at.

Regards

David

[1] 
http://wiki.openstreetmap.org/wiki/Open_Database_License/Implementation_Plan

> And this is a (major?) part of why regardless of what I think of what is
> left of the actual copyright I also think -- as I think I wrote before --
> that the community may well need to decide differently on the issue and I
> could well see myself supporting something stricter (if someone drags me
> into voting or otherwise casting an opinion on such a decision).
>
> Cheers,
> -Jaakko
>
> Sent from my BlackBerry® device from Digicel
> --
> Mobile: +509-37-26 91 54, Skype/GoogleTalk: jhelleranta
>
> -----Original Message-----
> From: "David Groom" <reviews at pacific-rim.net>
> Date: Tue, 5 Jul 2011 11:37:51
> To: Licensing and other legal discussions.<legal-talk at openstreetmap.org>
> Reply-To: "Licensing and other legal discussions."
> <legal-talk at openstreetmap.org>
> Subject: Re: [OSM-legal-talk] license change effect on un-tagged nodes
>
>
> ----- 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)
>> --