[Osmf-talk] Can we untick the Public domain checkbox from our initial choice done during OSM sign up?

[Kathleen Lu]

On Thu, Oct 3, 2019 at 11:42 AM Christoph Hormann <chris_hormann at gmx.de>
wrote:

> On Thursday 03 October 2019, Kathleen Lu wrote:
> >
> > In my view, the bulk of case law supports the view of the persistence
> > of the PD, regardless of medium. Most of the case law I am familiar
> > with on this topic is regarding photographic reproductions, see
> > https://www.jcms-journal.com/articles/10.5334/jcms.1021217/, but I
> > see no reason to distinguish data, which has thinner copyright
> > protection in general.
> > [...]
>
> I think you are mixing apples and peaches here - reproductions of
> artwork in museums are a completely different topic.  What we are
> talking about here is closely related to the specific characteristics
> of a database and how it is assembled from individual contributions
> (with the assembly and the adjustment to and synchronization with other
> contributions being the most important part) which again make use of
> and incorporate information from other data sources (like imagery or
> external data sets) which are possibly subject to IP rights.
>

Under the scenario posited, where non PD data is discarded or filtered out,
the IP implications are analogous. But we shall agree to disagree.

>
> But i think this discussion in this venue should not go too much beyond
> the scope of Severin's original question regarding the practical
> relevance of the PD checkbox.  I think i made my point that
> interpreting more into this than an answer to a simple survey is not a
> good idea.  This view seems to be shared by a lot of other people.
>

My point was not whether it would be a good idea to rely on the checkbox,
but rather that it should not be concluded as completely legally
meaningless, precisely due to its ambiguous nature.

>
> > >
> > > You misinterpreted my statement. When I said the PD statement could
> > > "lower
> >
> > the possible damages that could be claimed", I did not say "by OSMF".
> > I was referring to the possible damages that might be claimed by a
> > data contributor that had inadvertently checked the PD box. Whether
> > one has a belief as to the licensed or otherwise noninfringing status
> > of a use has an impact on the damages that might be awarded, at least
> > in some jurisdictions.
>
> I see.  But i don't think that scenario has any significance here - as
> said we are talking about OSM data users who obtained their data from
> the OSMF.  Any ODbL violations of OSM data users based on the mistaken
> impression that the data is actually usable under PD would be primarily
> a matter of the OSMF to pursue and possibly to claim damages for.
>
> I disagree. With OSMF having no conclusive way of knowing the intent of
the persons who checked the box, based on the ambiguity as recognized by
everyone, *OSMF* would not be in a position legally to assert IP rights in
the ambiguous material. There is always the possibility that the
contributor, who can testify as to their intent or understanding of the
checkbox, might assert such rights.
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