[OSM-legal-talk] Is the license change easily reversible?

[Frederik Ramm]

Hi,

    the following occurred to me today, and I would be interested to 
hear other people's thoughts about it. What I'm writing here is not at 
all news; I just hadn't thought about it until now.

In the Contributor terms, the license that OSM data is distributed under 
is mentioned in this way:

"OSMF agrees that it may only use or sub-license Your Contents ... under 
the terms of one or more of the following licences: ODbL 1.0 for the 
database and DbCL 1.0 for the individual contents of the database; 
CC-BY-SA 2.0; or such other free and open licence (for example, 
http://www.opendefinition.org/okd/) as may from time to time be chosen 
by a vote of the OSMF membership and approved by at least a 2/3 majority 
vote of active contributors."

It is clear that the license can be changed to a different one at any 
time through the 2/3 provision.

But, even after the switch to ODbL, OSMF could go back to CC-BY-SA 2.0 
at any time - and would, as far as I can see, only need a simple 
majority board decision for that.

This puts OSMF in a position of quite some power.

Let us assume for a moment that there are a few big players waiting in 
the wings with products ready to be launched once the license change has 
come through; products that have been designed for over a year and at 
considerable cost. Assume someone launches a few months after the 
license change, and further assume that there is something we (as a 
project) are unhappy about. Say they mix their proprietary data with OSM 
data in a way where *we* think they have to release something back but 
*they* point to the legal analysis they have been doing for the last two 
years and say "no way, Jose, come sue us if you dare, mwhahahaha."

Could we - could OSMF - in such a situation simply say: "Know what, Mr 
big guy? Either you play nice and release that data, or we'll simply go 
back to CC-BY-SA 2.0 next month."

I don't assume that we would really *want* to go back but it wouldn't 
exactly kill us, and depending on what is at stake (I assume it could 
easily be a multi million dollar thing) we (the project) would lose much 
less than those we'd be up against. We wouldn't really want to but we 
*could*, and the fact that the big guy would only have to piss off the 
wrong four people at OSMF to ruin his product could balance one thing or 
the other in our favour.

Questions arising from this -

1. Is my reasoning correct?

2. Are we happy with OSMF board wielding this power - should we (the 
OSMF membership) perhaps curtail OSMF board's powers by creating a rule 
that says that any decision regarding the license under which the data 
is published must be taken by the whole membership and not just the board?

3. If the CTs were changed post-license-change to omit CC-BY-SA 2.0 from 
the list of available licenses, then the above scenario would become 
impractical - we could then not simply go back to CC-BY-SA 2.0 without 
losing data from new contributors (unless going through the 2/3 rule). 
Such a change in the CTs would create more security for anyone investing 
in a product based on our data by taking away the bargaining chip I have 
written about. Does the power to change the CTs currently sit with the 
board alone, and are we happy with that?

The power to modify the CTs carries with it the power to entrench the 
current license practically forever; someone with liberty to change the 
CT as they see fit could, for example, simply strike out the "future 
license change possible with 2/3 of active contributors" clause and 
therefore create a situation in which no future OSMF can change the 
license without going through what we go through now. Of course the CTs 
cannot be changed retroactively but doing so for new signups is 
effective enough.

Bye
Frederik

-- 
Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09" E008°23'33"