[Osmf-talk] New license change proposal status

[James Livingston]

On 05/12/2009, at 8:54 PM, Richard Fairhurst wrote:
> 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.

The previous High Court ruling on this kind of thing, Telstra vs Desktop Marketing, ruled that a phone book _was_ protected by copyright here - because under Australian law gives databases their own copyright independent of the copyright covering the contents of the database. At a high level it's vaguely similar to EU database rights in that it's a right that covers an overall database, but the details are very different.

The Nine Network vs IceTV ruling was about what "substantial" meant in relation to that database copyright, and is made more complicated because IceTV was sourcing their data from places other than the Nine Network tv guide as well. Exactly how much of Desktop Marketing got over-ruled is something that no-one really knows because we haven't seen any fallout in lower courts yet, and lawyers are divided on what they think will happen.


CC-BY(-SA) could protect the contents of a factual database in Australia, however whether it practically does due to the definition of "substantial" is something we can't know until we get more court rulings.


Most of it is under CC-BY, so the worst that would happen is they don't get attributed, but it is worth nothing that a variety of government departments have made databases of factual data available (e.g. data.australia.gov.au). I would presume that they had some lawyers considered the enforceability of the licences before doing so.


> 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.
>
> More recently, Register v Verio (US) also upheld browse-wrap licensing 
> in a manner very applicable to OSM: repeated extraction of data from a 
> database protected by browse-wrap terms of use. (There's an Australian 
> viewpoint on this at http://www.findlaw.com.au/article/12352.htm .)


I believe that there have been cases where click-wrap agreements have been upheld in Australia, but I don't think there have been any on browse-wrap.

I recall a discussion about two with some friends who were final-year law students (specialising in .au contract law) at the time that the footers people put in emails weren't enforceable unless something else was involved (e.g. mail from government employees might fall under a Protective Security classification). Of course that should be taken with a very large grain of salt, as I don't have any references, and they weren't a) lawyers yet, b) my lawyer, c) your lawyer, and it's not quite the same thing.


A couple of other issues brought up by relying on contract law:
1) What to do about those who can't legally enter into contracts, such as minors?
2) I know it got punted, but choice of law. If we ever need to enforce the ODbL via contract law, I'd like to know where we'd take action. The place that the (alleged) violation took place seems like the obvious choice as it is (AIUI) what you'd do for copyright violations, but that wouldn't necessarily have to be the case.