[OSM-legal-talk] Guideline review: Substantial

Paul Norman penorman at mac.com
Wed Apr 30 04:39:49 UTC 2014

> From: Luis Villa [mailto:lvilla at wikimedia.org] 
> Sent: Tuesday, April 29, 2014 3:10 PM
> To: Licensing and other legal discussions.
> Subject: Re: [OSM-legal-talk] Guideline review: Substantial
> Reminder that Simon has pointed out here quite recently that ODBL claims 
> to be a binding contract that can apply when no license is necessary.

So, there's two cases here. One is in Europe. You might have trouble 
enforcing a contract which restricts you from acts permitted in the 
directive. I'm not sure of this interpretation, but won't further 
consider it because the point is moot, since 6.0 explicitly says that 
the ODbL doesn't restrict the rights you have under the exceptions to 
the database right. 

The other more complicated one is outside Europe, where you'd be looking 
at the ODbL as a copyright license or contract. In that case, we still 
want the guideline to be in harmony with the database directive for a 
few reasons 

1. The ODbL defines the terms with the same text as the database 
directive and directly references the EC directive. 

2. Different definitions of substantial would result in different 
allowable actions depending on where you are. To some extent this is 
going to happen anyways, but if we can avoid additional cases that's 

3. Europe is probably the only place where the courts have considered 
the definitions of substantial and insubstantial used in the ODbL. 

4. I find it's generally easiest to look at the ODbL as a license 
database right, rather than a license of copyright or a contract 

> This strongly suggests that a European court would evaluate 
> "substantial" in the quantitative sense with regards to the entire 2B 
> records in OSM, not with regards to the database the information was put 
> into. It would be interesting to see what courts around Europe are 
> finding as "substantial" in this sense; I see one reference to a French 
> court that found that taking 15% was not quantitatively substantial, and 
> the GRADE paper linked to from the wiki suggests it would have to be >50%.
> But I suspect this would vary a lot based on the facts of the case, 
> and that a skilled lawyer could raise or lower the number. And of course 
> in the case of a database as large as OSM a court might try to change 
> their mind. 

OSM has ~250M features. The difference from 2B is for technical reasons 
to do with the data model. Seeing the percentages that are being used 
for substantial, I think anything that is quantatively substantial will 
be qualitatively substantial. 

I also suspect that OSM has two key differences from anything else 
considered. One is the size and worldwide scope - Great Britain is ~2% 
of the planet-wide data, but anyone trying to work with all of Great 
Britain is hardly likely to not consider it substantial. 

Another is applicability to database of geographic information. I'd 
defer to someone who's more familiar with them, but I believe the 
Ordinance Survey treats *much* smaller extracts of their data as 

> For qualitative, the key passage of BHB is:
> > [S]ubstantial part, evaluated qualitatively, of the contents of a 
> > database refers to the scale of the investment in the obtaining, 
> > verification or presentation of the contents of the subject of the act 
> > of extraction and/or re-utilisation, regardless of whether that subject 
> > represents a quantitatively substantial part of the general contents of 
> > the protected database. A quantitatively negligible part of the contents 
> > of a database may in fact represent, in terms of obtaining, verification 
> > or presentation, significant human, technical or financial investment. 
> (Para 71) 
> In other words, a small chunk of a large database can be qualitatively 
> substantial if the cost of "obtaining, verification, or presentation" of 
> that small chunk was substantial. The court goes on to say that it 
> doesn't matter if the small chunk is, by itself, valuable - what matter 
> is the work done to put it into the database. What qualifies as a 
> substantive "investment" is left as an exercise for the lower courts. 
> (One German case I've found seemed to presume that 39,000 Euro was a 
> substantive investment, but that was not the primary point being argued 
> in that case so I wouldn't rely on the number being that low.) 

Putting BHB into an OSM context, what seems to matter is mapping effort. 
That makes sense - 100 detailed POIs are worth more than 100 points with 
only building=yes. Of course mapping effort is harder to measure...

> Some pretty decent summaries of BHB and other relevant caselaw, FYI:
Thanks for the links - they're on my to-read list.

> Few other comments:
> *	It might be helpful to link to http://wiki.openstreetmap.org/wiki/Map_features 
>   when talking about Features, assuming those are the same concept,
>   which I admit I'm still not 100% sure about?

It's a data model issue. OSM's data model is designed for crowd-sourced 
editing, and polygons are composed of multiple elements. The definition is 
basically equivalent to a feature being one "thing" after conversion to
more traditional GIS formats. The conversion is similar to how Wikipedia
pages need to be parsed to resolve transcludes and other features before
they're actually usable.

Bringing it back to the guideline, I'd suggest 

- Dropping references to villages or areas

- Dropping reference to 100 features; the number doesn't seem in line 
  with quantative

- Reframing in terms of mapper effort, i.e. the cost of "obtaining, 
  verification, or presentation"

- Referring to features and noting that a feature like a building 
  may be formed with multiple OSM elements (i.e. multiple nodes) but 
  is one feature.

I could try writing some text if there's agreement on these points.

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