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

Tue Jul 5 17:49:02 BST 2011

I doubt if any effort in re-creating a map database of the real world
can be classified as creative work,
as the mapper inevitably tries to copy reality to the best of his
effort, and any deviation is just imperfection 
and corrected once the right information is available.

I never met a OSM mapper saying he is using his creativity to create
an original view of the world. Its not just a lack in precision and
perfection that
makes a work creative, the creator must also have the intention to add
something
of himself.

In creating tiles "the map" I agree. Not in creating a database.

Gert

-----Oorspronkelijk bericht-----
Van: David Groom [mailto:reviews at pacific-rim.net] 
Verzonden: dinsdag 5 juli 2011 16:46
Aan: Licensing and other legal discussions.
Onderwerp: 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: 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(r) 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)
>> --

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