[OSM-talk] Frederik declares war on data imports...

[Richard Fairhurst]

80n wrote:
> This is quite a good place to start:
> http://itlaw.wikia.com/wiki/Copyright_protection_of_databases

It's good to see licence sceptics starting to look at the case law too.

There are of course a million things you could say about rights pertaining
to factual compilations in the US. Several thousand of them have been said
on this list over the past few years and I don't intend to bore everyone by
repeating them.

I will, however, repeat one point which I've made several times over the
years (Google suggests
http://lists.openstreetmap.org/pipermail/legal-talk/2009-July/002603.html
was a recent instance :) ).  Whether geodata is copyrightable in the US is a
"shades of grey" thing, not an "either/or". When a few years back I trudged
round a Worcester housing estate with a GPS noting down the street names,
then faithfully entered them into OSM, there certainly wasn't a minimal
level of creativity there. If I were to do a detailed hiking survey of the
Malvern Hills, carefully judging what might be a MTB-suitable trail, and
what paths have become established despite not being RoWs, that would
involve some creativity and thus merit some protection. And so on.

This is well established in Mason v Montgomery Data, a case about copying
data from a 'traditional' cartographic map, which I'm slightly surprised the
Wikia article doesn't cite. It's regarded by commentators as the case that
stretches the Feist v Rural judgement the most in favour of "compilations
involve creativity", so it's a good one to test against. It concludes that
Mason's maps are original through the "creativity in both the selection,
coordination, and arrangement of the facts that they depict... and in the
pictorial, graphic nature of the way that they do so". I wouldn't for a
moment say that my Worcester estate survey involved any creative selection,
coordination or arrangement: my Malvern Hills survey might well.

So, as I've said several times before, some extracts from OSM involve
copyright in the US, others don't. One could of course say "we're happy with
only protecting some of our data, let's stick with CC-BY-SA". But given that
I remember you (Etienne) remonstrating with me three or four years ago when
I suggested "maybe we should allow people to derive the position of features
not included on the map" (the same thing Ed Parsons keeps suggesting to OS),
and you said "ah, but what if they plot the lamp-posts then reconstruct the
road", I'm guessing you're still on the maximalist side.




Ok. Some of OSM involves copyright in the States. What does that actually
_mean_?

Probably not what we think it does. I'll cut to the chase and just
copy-and-paste the conclusion from that Wikia page:

"In summary, very few of the post-Feist compilation cases have held entire
works to be uncopyrightable. In fact, copyrightability of the entire work is
seldom even contested. Disputes tend to focus instead on the scope of
protection. Consistent with Feist's pronouncement that copyright affords
compilations only 'thin' protection, most of the post-Feist appellate cases
have found wholesale takings from copyrightable compilations to be
non-infringing. This trend is carrying through to district courts as well."

In case you didn't spot the interesting bit:

"wholesale takings from copyrightable compilations [are] non-infringing"

Holy cow.

In other words, whether or not the compilation (the database) is
copyrightable, you can still extract from it with impunity. In Feist, it
actually says: "a subsequent compiler remains free to use the facts
contained in another’s publication to aid in preparing a competing work, so
long as the competing work does not feature the same selection and
arrangement".

Mason v Montgomery Data spots this in Feist, too: "The facts and ideas ...
are free for the taking... The very same facts and ideas may be divorced
from the context imposed by the author, and restated or reshuffled by second
comers"

And in Wikia's commentary on Warren Publishing v Microdos Data: "the only
conduct that arguably can be said to infringe is verbatim duplication of the
entire work".

It's all good fun.

But however much we content ourselves with happy thoughts of "ah, but the
smoothness tag is creative" and so on, we need to think about what an
alleged infringement might actually be. Let's say our mappers have corrected
all the TIGER geometries using aerial/satellite imagery. Is that a hell of a
lot of work? Yes. Is that commercially valuable? Yes. Would J Map Co, aiming
to compete on a street map level with Google et al, like that data? Hell
yes. Are they bothered about the smoothness tag? Hell no.

Can you _unambiguously_ say that the "wholesale taking" of this part of OSM
is an infringement according to US case law? I can't.

Shades of grey, shades of grey.

cheers
Richard
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