[OSM-talk] [Announce] OSMF license change vote has started

[Anthony]

On Sun, Dec 6, 2009 at 12:11 AM, Matt Amos <zerebubuth at gmail.com> wrote:

> On Sun, Dec 6, 2009 at 4:53 AM, Anthony <osm at inbox.org> wrote:
> > I don't know, I find it somewhat mind-boggling that a site like OSM would
> > even consider resorting to "browse-through license agreements" in order
> to
> > impose terms which go beyond that of copyright.  It's the exact oppose of
> > what I'd expect from a site which calls itself "open" and "free".
>
> i'm not sure i understand your point. OSM has a license which (tries
> to) impose requirements on the re-use of the data, but that's still
> "open" and "free", right?


CC-BY-SA doesn't try to impose any requirements which go beyond copyright
law.  Agreeing to CC-BY-SA can only give me, as the licensee, *more* rights,
not take any away.  "Nothing in this license is intended to reduce, limit,
or restrict any rights arising from fair use, first sale or other
limitations on the exclusive rights of the copyright owner under copyright
law or other applicable laws."  CC-BY-SA is a unilateral conditional waiver
of rights.  ODbL, on the other hand, is a standard bilateral contract.

we're talking about moving to another
> license with very similar requirements, but a different
> implementation, and that's not "open" and "free" anymore? it would
> really help me if i could understand your position.
>

Creative Commons said it better than I can:

http://wiki.openstreetmap.org/wiki/ODbL_comments_from_Creative_Commons

"Section 2.2(c) of the proposed ODbL explicitly makes the ODbL a contract,
in addition to being a license. As mentioned above, accepting a license is
usually only necessary when there exists some underlying property right.
However, a contract can be based simply on mutual agreement, provided that
the requisite requirements of contract formation (meeting of the minds,
consideration, etc.) are met.  The result is that the ODbL can in certain
circumstances impose obligations and restrictions on users under a contract
theory, rather than based on a protection afforded by statute, common law,
or other recognized right.

Thus, it is not clear under the ODbL whether providers would have an
independent breach of contract claim, in addition to an infringement claim,
or even in the absence of an infringement claim, for any violations of the
“license” (or alternatively, contract).

This is important for several reasons. First, as discussed above, due to
legal variations in copyright doctrines among different countries, as well
as the availability of sui generis protection in some countries but not in
others, there may be cases where an infringement claim is not available to a
provider because no underlying property right exists. However, in such
cases, could the provider seek to enforce a provision of the ODbL, such as
the share-alike provision, under a contract theory instead? And if it could
do so, would that constitute an extension of protection beyond the scope
intended by existing statutory schemes? For example, could data or databases
that fail to qualify for copyright protection under U.S. law due to lack of
the requisite level of creativity nevertheless be made subject to the
share-alike provision in the U.S. under a contract theory? Could this be
applied to individual data elements that are not themselves
copyrightable—such as sensor readings or basic facts and ideas? Could
European sui generis database rights be enforced against a U.S. user on the
basis of the existence of a contractual relationship created by the ODbL?"
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