[Talk-GB] non-attributed map

[Edward Bainton]

I agree that statements by OSMF, and quite possibly the wiki guidance too,
would be fodder for an estoppel - ie, they effectively serve to amend the
licence.

> Your are right that a court could try to apply some common sense
> criteria or additional evidence but then it could not.

The Court (assuming it's an English court) would presumably apply the same
test as it has in copyright cases, where 'substantial' is often a hinge
issue.

They've said you go to the reason the law protects that copyright, which is
different in different sorts of works. IANAL but I would think that it
would not be too difficult to persuade the court that, since the OSM
database is made available free of charge, the licence is not there to
protect any economic rights (such that an economically trivial re-use would
be allowed), but rather the moral rights of the contributors - and
therefore in almost no case would reuse be insubstantial.

See this barrister's note by Jane Lambert:
https://nipclaw.blogspot.com/2008/09/copyright-what-is-meant-by-substantial.html

> any OSMF [...] statements that add restrictions would be ignored,
> as licensee would simply choose the original license instead.
To pick a nit or two, it's not that in such a case the licensee would have
the choice between the estoppel and the black-letter licence, but that
there would be no estoppel at all in favour of the licensee. (On the other
hand if the licensee conducts himself in conformity with the added
restrictions, the licensee may be estopped from later claiming that after
all they have the greater latitude granted by the black-letter licence.)

Of course this all depends on OSMF having the funds to fight Big Corp (and
risk losing) in court. So this is probably all a moot point.*

*how very satisfying to have the opportunity use the word properly.


On Mon, 6 Sept 2021 at 17:01, ndrw6 <ndrw6 at redhazel.co.uk> wrote:

> On 06/09/2021 12:06, Simon Poole wrote:
> >
> > Contrary to Amazon, the OSMF is the licensor of the OSM data and
> > naturally any assurances and statements the licensor makes with respect
> > to its interpretation of its licence will have, lets say, quite a lot of
> > weight in court. See also https://en.wikipedia.org/wiki/Estoppel
>
>
> Estoppel allows either side of a contract to use statements of the other
> side to its advantage (subject to some conditions). So, any OSMF
> statements that relax licensing requirements are potentially valid but
> any statements that add restrictions would be ignored, as licensee would
> simply choose the original license instead.
>
> The issue is with the term "substantial", which is defined in ODbL as:
>
> "'Substantial' – Means substantial in terms of quantity or quality or a
> combination of both. The repeated and systematic Extraction or
> Re-utilisation of insubstantial parts of the Contents may amount to the
> Extraction or Re-utilisation of a Substantial part of the Contents."
>
> Translation: substantial means substantial and insubstantial may or may
> not (choose your preferred option) amount to substantial.
>
>  From the legal point of view this whole clause means nothing at all.
> Your are right that a court could try to apply some common sense
> criteria or additional evidence but then it could not.
>
> OSMF guidelines attempt to fix that by making statements like
> [insubstantial means] "less than 100 features" or "features relating to
> an area of up to 1,000 inhabitants". There are two problems with that,
> though:
>
> Amazon (an example) is free to say to them UK road network is an
> insubstantial part of the OSM database ("it is less than 1% of all
> features in the database" or some other arbitrary but reasonable rule)
> and ignore OSMF guidelines as adding restrictions they did not agree to.
>
> Contributors are free to say to them substantial meant "more than 10
> features" and accuse OSMF of violating contributor terms.
>
> If the license is not clear - change it. There is a process for that.
> Otherwise, at best guidelines are advisory, at worst they themselves
> violate the agreement between OSMF and contributors.
>
> ndrw6
>
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