Francis is right. On a proper construction of the licence as a whole the words "only under the terms of this License" mean no more than that the Licensor grants the ODC-By database licence to every Licensee, there is no sub-licensing.
In my opinion the phrasing is unfortunate because it can too readily be misunderstood as requiring that Derivative Databases must be licensed under ODC-By. An ill-advised court might read the licence in that way. In my opinion this should be addressed, in the medium term in a new version of the licence, and in the interim in the FAQ. Thank you for working through this with me Francis. On 27 March 2015 at 19:50, Andrew Rens <andrewr...@gmail.com> wrote: > Thanks again Francis > >> >> But I see that there is a reading, albeit in my view a rather strained >> one, that says "under the terms of this License" means the same as "under >> this License". In other words the modifiers "only" and "the terms of" are >> unnecessary and are padding. Padding is always possible in contract >> drafting. >> >> Now in English law a court would be reluctant to select such a meaning, >> on the grounds that: (i) it makes less sense; >> > To be clear - it is not that I want the licence to read in this way. > Instead as I worked through the licence this seemed to be the obvious > reading. Of course what is "obvious" to one person may not be obvious to > another. Trad route descriptions routinely make statements such as 'ascend > the obvious crack' and then one finds oneself one pitch up the route and > find that the crack is not obvious at all. > > Nevertheless I am concerned about the effects of this reading because I > don't think it can so easily be dismissed. > > It may well not be an English court doing the interpreting of the licence. > 10.4 of the licence stipulates "Choice of law. This License takes effect in > and will be governed by the laws of the relevant jurisdiction in which the > License terms are sought to be enforced." > >> >> Your interpretation also does violence to other parts of the licence. Eg >> in 4.4 the term "You may enforce any rights that You have over a Derivative >> Database" is intended to make clear that a licensee may do what they please >> with their own rights, selecting any licence they please. If the licensee >> was required to license under ODC-By, then that term would not make sense. >> > > I agree that counts against the 'use the same licence' reading. But does > it count enough? > >> . >>> >> >> I like to think I am fairly familiar with licences too :-). >> > > No doubt :-) > >> >> > On distinguishing A's and B's: > > Frances wrote: > > Two points you might want to think about: > > (i) There will be circumstances where a Derived Database does not contain > any of the originators IP - for example where it contains only an > insubstantial contribution of the original work. Unusual, but possible. For > example, if the original database had a very thin layer of database right - > where the independent investment was only just "substantial" - a derived > database might not have extracted sufficient data to amount to an > extraction of that investment. > > Would you make this more concrete? > > A more common situation might be a translation or adaptation. The two > principal ways of infringing database right (extraction and re-utilisation) > are pretty strict. Creating an adaptation may well not be a re-utilisation. > > (ii) The obvious situation where this might matter is a mashup of some > kind where a third party does not have any interest in A's data but only > wants B's. > > This is really quite a common situation. I have quite a few clients who > have databases of this kind. In the open data world this sort of > combination is a very useful aspect of open data. > > If I understand you correctly then in both i. and ii it must be possible > to distinguish A and B's data. > > People want to achieve different things with open data. PDDL and CC0 do > particular jobs that not everyone wants. Many people do care about > attribution, hence CC-BY and ODC-By. Others feel more strongly about > enclosure of the commons and choose ODC-ODbL or CC-BY-SA. > > I agree that people are trying to achieve different things with open data > - as a consequence my close reading of ODC-By which raised the question. > > Note that I wasn't one of the lawyers involved in drafting it (though some > clever minds did get involved). It should also go without saying that none > of this is legal advice by me - but of course for a fee I'd be happy to > offer it :-). > > We need to come up with an acronym that is the equivalent of IANAL for > those of us who are lawyers. Perhaps IAALBTINLAYHTPFT: > I am a lawyer but this is not legal advise, you have to pay for that > Wordy but then we have reputation to uphold. > :-) > > Andrew Rens > >> >
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