[Osmf-talk] [OSM-talk] Attribution guideline status update

[Frederik Ramm]

Hi,

I'm having a strong "license change discussion deja-vu" here.

On Friday 01 November 2019, Kathleen Lu wrote:>  - the attribution
guidelines should not require more than the law or> attempt to prohibit
things the law allows because the ODbL itself> notes that certain rights
are granted by law and the ODbL does not> interfere with them - (if I
understand you correctly, Christoph, you> disagree with me on this point)
On 01.11.19 19:03, Christoph Hormann wrote:
> Indeed.  My opinion is that the attribution guideline as a guideline
> about one specific requirement *of the ODbL* - the attribution - should
> not cover any explanation of the practical effects of the law that are
> generic, i.e. that would apply equally to ODbL data and non-ODbL data.

When we discussed the license change there were of course many different
thoughts and concepts around, but even then we had a camp of
"idealistic" people who thought that we could formulate our requirements
on a moral rather than legal level - that we could in fact even release
our data under a "public domain" license and accompany that with a list
of moral requirements where we say that "in return for having all this
free data, we expect that you provide such-and-such attribution" - a bit
like it's common in academia where attribution is a trade norm and not
forced by law.

And we had a camp of "fatalistic" people who thought that any
requirement, any claim that we could not underpin with strong legal
support at least in the major jurisdictions would be folly. Asking
people to comply with some rules if we don't have the tools to *force*
them to comply was worse than useless - it would make us look silly, and
prove that we live in some sort of fantasy land where people (and
corporations) are believed to be, on the whole, "good".

If I have followed this discussion right, then Kathleen, coming from a
legal background, is firmly in the "fatalist" camp, and her position is
that it is useless to interpret the ODbL as requiring attribution where
such a requirement would not stand up to legal scrutiny. Whereas
Christoph seems to say that we shouldn't be intimidated - that we should
simply describe the attribution requirements we want to follow from the
ODbL and if someone then wants to disregard that because it doesn't
apply to their jurisdiction - not our problem. Which again Kathleen
would see as a failure on our part (not having foreseen that our
requirements are moot).

I think both sides have a point. I would, however, lean towards the
idealistic. I would say: It is not an embarrassment for us to request
more than we might be able to actually enforce. Perhaps we need to find
the right wording for this.

It would perhaps behoove the LWG to take a step back from the question
of "what could we enforce in court", and rather ask "what is the spirit
of this license". We should not focus on the mechanics of the license
and which parts might be enforceable how in which jurisdictions; we
should define what our reading of the license is, and we should create
an ecosystem of people and companies who are "our friends" and who stick
to our reading of the license, whether or not that is held up by the law
in their jurisdiction. And if people and companies don't adhere to our
reading of the license, then they might still be legally in the clear
but they aren't our friends any more.

I think we are approaching that level of clout, and we can start using
it. I think it is perfectly ok for us to say: "We'll only like you if
you follow our reading of the license. If you follow your own reading of
our license then that might be legal in your country, but it doesn't
force us to like you".

It would be absolutely wrong to think that we have to smilingly accept
any use of our data that complies with our license as interpreted by
courts and lawyers in that jurisdiction. It might be legal, but that
doesn't make it "ok".

Bye
Frederik

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