[Openstreetmap] public domain in USA

Immanuel Scholz immanuel.scholz at gmx.de
Tue Dec 13 14:13:35 GMT 2005


Hi,

[standard-I-am-not-a-lawyer-so-this-is-only-my-interpretion-disclaimer]

Ok, I try to summarize the problems that some lawyers in germany see with
the different "public domain" licenses around. I don't know other country
laws as near as good, but maybe some of this applies to them as well.


> Public domain in the US means exactly that... it belongs to the public
> with NO restrictions.

In germany, when you sign an invalid contract, the contract is nil and
standard rules in the law apply.

The standard rule for copyright stuff in germany is "you don't have any
rights".

So the interesting question is: Is the "public domain" license of the US
government valid in germany? AFAIK there is no case for this decided by
any german court.

The case is not so obvious, as in germany you cannot drop any base right
(As example a contract saying "I am your slave" is always nil) and some
courts count the "Urheberrecht" as a base right.


>     Access_Constraints: There are no limitations for access.
>     Use_Constraints:
>       None, The Aerial Photography Field Office asks to be credited
>       in derived products.

So the better chance of beeing accepted by german courts are: "All rights
reserved, but I hereby grant all people a right to do anything with it."
which will make clear, that the creator of the work do not try to "loose"
its right (which would maybe make the license invalid in germany).



There is another thing (again, in germany. Maybe apply to other countries
as well): The "Urheberrecht" is only enforced, if the aggrieved party sue.
The copyright notice above make it very clear, that it is not the
intention of the US government to sue people because they use their data.

But this is only an indicator of whether we can hope they wont sue. If at
any time a german court decides, that a public domain license is not valid
in germany, then OSM uses illegal, copyrighted data instantly.


So what is the conclusion? If in some future, any german court decide that
the public domain license is valid in germany: no problem!

Let's assume they decide it is invalid. Then OSM can ask the US government
(as many other people will do) to rerelease their data under an acceptable
license, as example GPL. The question is: Will they do this?


What is the motivation of US government to put the data under public
domain? It's because people already paid taxes for it, so charging them
again would not be very nice (and is prohibited by law ;).

But german people don't pay US taxes. So my bet is that they would not
release the data world wide under terms of GPL or CC. Maybe I am wrong
here.


Ciao, Imi

PS: The GPL has already been accepted by a german court. It is valid. The
CC is translated to german-legal-text and this version is considered valid
by practically all german lawyers (but the english version may not be).

PPS: My top bet is that the public domain is valid in germany. No german
court will be brave enough to take the amount of protest people will make
if they learn about this crazy and counter-intuitive legal stuff ;-)







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