[OSM-legal-talk] MAPS.ME combining OSM data and non-OSM data?

[Christoph Hormann]

On Friday 22 July 2016, Ilya Zverev wrote:
> You are starting to derive the licensing terms from intentions, and
> not the actual process or usage. Which basically says, if the
> community accepts this way of judging: however you use our data, if
> we don't like what you do with it, you would have to stop. And that
> is definitely not a FOSS license, and not only maps.me would have to
> stop using OSM, because there would be a chance that any data user
> might suddenly find out that odbl favours the provider. It's like
> "this data must be used only for good and not evil": while fun,
> legally dangerous.

I have not argued in any such direction, it seems however with the above 
you are trying here to bring the usual FUD argument that the OSM 
community has to follow a lenient interpretation of the license - 
otherwise no one can use OSM data out of fear of violating the license, 
which is obviously nonsense.

So please once more: lets concentrate on this specific use case and the 
question how this fits into the rules of OSM data use.  I tried to 
follow your view and explained why i think this is ultimately 
non-consistent and would lead to a situation that is not consistent 
with various aspects of the license and the community guidelines.  I 
would expect you to argue those points and not the general 
righteousness of my approach.

> It seems to me, you are considering the Collective Database Guideline
> to be the law,

No but it tells you something about how the OSMF and the OSM community 
view the license.  If you do something that violates the guidelines 
(which i have not said you do) but trust it is OK by the letter of the 
license (which i have not said it is) then you have to keep in mind 
that by doing that you communicate that you don't care about the views 
and the wishes of the community.

Also note from a legal standpoint the community guidelines are not 
meaningless, especially if we are talking about uses that take place 
after a guideline has been published and the licensee is aware of the 
content of the guideline (which probably can be said to apply here).  
Licenses are contracts and at least here in Germany the basis of all 
contracts is agreement between the contact partners on something.  No 
agreement - no contract.  So if the OSMF as one contract partner in the 
license contract has clearly communicated publicly and beforehand 
through the community guidelines that from their side some use is 
definitely not part of the agreement that is a strong indicator on the 
nature and the limits of the license contract in any legal 
disagreement.

But note this is a layman's view of course and IANAL.

> [...] It defines what is a collective database, but
> does not define the contrary: if a data set is not covered by the
> guideline, it doesn't automatically become derivative.

But neither does it become collective.  And if you re-read my last 
mail - i clearly made the argument based on the license itself that it 
would be difficult to argue that your modified OSM hotel database with 
select hotels removed is an independent database because it is 
specifically intended to be used in combination with another 
proprietary database and the derivation from the original data (removal 
of features) only makes sense for use in this combination.  And 
classification as a collective database requires the individual 
databases to be independent.

> Consider a simpler experiment. I remove nodes based on an obscure
> algorithm. I then publish the rest of the database and a list of
> removed nodes under an open license. Do I have to open the algorithm?

You never have to open any algorithms, publishing the methods used is 
just a possible alternative to publishing the derivative database and 
it can only be used if this method can be used by anyone to reconstruct 
the derivative database from the original data (like when you use a 
random number generator to remove random features).  But if you 
intermingle ODbL and proprietary data into a derivative database 
publishing only the algorithm used for that is meaningless since to 
reproduce the results you need the proprietary data as well.

-- 
Christoph Hormann
http://www.imagico.de/