On Feb 19, 2008 11:54 PM, John Wilbanks <[EMAIL PROTECTED]> wrote: > Hi everyone. My name is John Wilbanks. I am the VP for Science Commons > at Creative Commons, and I'm the one who wrote the Protocol for > Implementing Open Access to Data. > > I've been lurking here for a couple of weeks. I don't like showing up > and posting without getting a sense of the community. But I think it's > important to join this debate and get your responses...I'll stay here on > this list, I'll take questions, and I'll take flames. I'm glad you're > having this debate. It's a good debate. And I'm stoking the fires of it > with this post - but I think you deserve my honest sense on this, and > not a mumbling political post. > > I am speaking here as an individual who endured 18 months of research > into open data as part of CC, but not on behalf of CC the organization. > > > > The issue was quite simple. We need to have a license that better > > > protects the OSM data > > I'm going to be a little provocative here and say that your data is > already unprotected, and you cannot slap a license on it and protect it. > This sounds to me like someone deciding to put a license on the United > States Constitution. You're welcome to try that - but that license will > not change the underlying legal status of the Constitution, which is the > public domain. >
> That means I'm free to ignore any kind of share-alike you apply to your > data. I've got a download of the OSM data dump. I can repost it, right > now, as public domain. You can perhaps try to sue me - though I'm pretty > sure I would win. But you absolutely couldn't sue anyone who came along > and downloaded my copy and then reposted that same data as public > domain. There's no copyright on your data, and that means that only the > people who sign your deal are bound to it, not anyone who gets it from > the people who sign your deal. Unlike the copyright on a song, which > travels along with the song no matter what, the share-alike is > restricted to the parties of the contract. It's called privity - see > http://en.wikipedia.org/wiki/Privity_of_contract > John, perhaps you could comment on the following often suggested gambit: Interspersed within all the facts in the OSM data dump are a number of non-factual elements. There are both accidental errors and probably quite a few *deliberate* errors (I know of some). These non-facts are presumably creative works and can be covered by copyright law just like any other creative work. Your suggestion that you can do what you like with the data somehow seems to ignore this minor detail. How would you propose to filter out the non-fact elements that are genuinely copyright? > > That's why the ODC was something that CC didn't support. It holds out a > promise of power that is illusory. Privity + no IPRs = easy to repost as > public domain. > > > Do we? What's the threat? How has it been assessed? > > The threat comes from people who are worried about data "Capture" - but > it is wrong to think that the law is a magic wand here. GPL style > approaches only work in the presence of copyrights. They simply don't > have the power in data. The real answer is: if you put your data online, > it's essentially in the public domain. > > Bad people know this and will exploit it. That's what you don't want to > allow. But simply posting the data gives the bad people a lot of power. > The nice people are going to obey your rules and be constricted by them, > but not the bad people. > > I would encourage you to think not about the threat, about those who > will take the data and not recontribute, or who will sell the data, than > about the good people. Given that the data is already in the public > domain, whatever license you choose, how will you instead *reward* those > who think it's worth being a good citizen? That can be done with moral > statements of normative behaviors and a trademark for OSM - only those > who behave get to use it and advertise themselves as OSM compliant. > > It's a far healthier strategy in many ways than relentlessly trying to > stamp out perceived violators. One can imagine a data owner beginning to > empathize with the RIAA, who see violations everywhere and in so doing, > loses focus of the opportunities for good outcomes. > > > > OSM never started out as a PD project so why would we think that it > > > would be better to recommend it go PD now? > > Because that's the legal status of the project. My copy of your data is > in the public domain. It doesn't matter what the wiki license says - > that license only protects copyrighted things. You can choose to use > contracts to entangle users, like the ODC does, but it will only block > the good guys. The bad guys can work around that in less time than it > takes to download your data. > > jtw > ps - Jordan Hatcher, who drafted both the ODC and the PDDL, is a > remarkable attorney and far more knowledgeable on the details of the > contracts than I am. I'm proud to call him a colleague. > > _______________________________________________ > legal-talk mailing list > legal-talk@openstreetmap.org > http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk >
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