[Osmf-talk] New license change proposal status
richard at systemeD.net
Sat Dec 5 10:54:06 UTC 2009
Elizabeth Dodd wrote:
> On Fri, 4 Dec 2009, Matt Amos wrote:
>> i'm not saying that ODbL is ideal - i never have. i'm saying that CC
>> BY-SA is totally, utterly, irrecoverably broken and ODbL is the best
>> alternative we have at the moment.
> I'm not going to accept "this is the best at the moment"
> I'm not going to relicence, because in my jurisdiction a database licence is
> completely untested.
I'm disappointed by that.
It's not true to say that a database licence per se is untested in your,
or indeed any jurisdiction. Tele Atlas offers you a database licence
when you buy data from them. Same goes for Navteq. Same goes for
where copyright is not sufficient; and certainly contract law is shown
to work in Australia.
The Nine Network case, which I presume is the High Court ruling you're
referring to, only deals with copyright protection. It essentially
reaches the same conclusion as Rural v Feist in the US; facts are not
worthy of copyright, and nor is trivial arrangement (TV listings and a
phone book respectively). ODbL was written in full light of Rural vs
Feist so should withstand Nine Network v Ice TV just as well.
To delve a little deeper:
There is one particular difficulty in jurisdictions like the US and
Australia, where ODbL needs to be enforced via contract rather than
copyright. Users are often asked to assent to contracts via
"click-wrap", i.e. you have to click a button before you get access to
the data. OSMF feels (probably rightly) that this is too onerous, and
maybe unworkable, for an open licence. Therefore OSMF's suggested
implementation of ODbL is closer to "browse-wrap": here is the licence,
by using the data you assent to it. This is weaker, of course.
I believe that click-wrap and browse-wrap are indeed both untested in
Australia (I may be wrong). They have, however, been the subject of
several cases elsewhere.
My reading is that browse-wrap can now be viewed as acceptable if the
licensor makes clear efforts to show the licence terms to the user.
Pollstar v Gigmania (US), for example, concluded that "the browser wrap
licence may be arguably valid and enforceable" back in 2000. In that
particular case, though, it wasn't, solely because Pollstar had not
presented it in a sufficiently obvious way to the user. (FWIW I suspect
our current presentation of the licence on the osm.org homepage would
also fail this test.)
http://www.wilmerhale.com/files/upload/pollstar_gigmania.pdf if you want
to read more.
More recently, Register v Verio (US) also upheld browse-wrap licensing
in a manner very applicable to OSM: repeated extraction of data from a
viewpoint on this at http://www.findlaw.com.au/article/12352.htm .)
Certainly browse-wrap is good enough for Google Maps, for example - you
So, what of Australia?
The Copyright Law Review Committee of 2002, commissioned by the
Attorney-General , takes largely the same approach as Pollstar v
Gigmania. It notes the importance of alerting users to the terms of a
browse-wrap agreement. It then says:
"...notice may yet be sufficient if the terms are not unusual and/or
unusually onerous. For example, it might be argued that the use of terms
which exclude or modify the copyright exceptions, although once unusual,
is increasingly becoming standard industry practice of which users could
reasonably be expected to be aware. It might also be argued that such
terms are not unusually onerous in the same way as those dealt with in
the ticket cases, which have generally involved terms limiting liability
for damage/loss to property or injury to persons."
So to recap - and thank you for reading this far:
ODbL's principal provisions, those of share-alike and attribution, are
ones "which exclude or modify the copyright exceptions". An Australian
copyright review concluded that these are likely to be enforceable in
your country if reasonably prominent notice is given, and the cited
article on Register v Verio agrees. OSMF has thus far shown some
promising awareness of giving such notice, and I hope it will be kept
In contrast, Nine Network vs Ice TV drastically curtails the scope of
CC-BY-SA's applicability (as a copyright licence) to OSM data. A 'bare'
derived street database, with just geometries, road names and
classifications - the most commercially valuable dataset OSM has right
now - would almost certainly be judged "obvious and prosaic", and
therefore not merit protection.
ODbL therefore, I believe, provides much stronger protection for our
data in Australia.
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