Re: [OSM-legal-talk] Deconstructing the "loss of data" claim

[Jordan S Hatcher]

On 20 Feb 2008, at 00:56, Frederik Ramm wrote:

> Jordan said, in a recent response to one of my posts and comparing ODL
> to a PD-type license:
>
> "I personally am neutral on a preference between the two and think
> that it would be wholly inappropriate for me to recommend one or the
> other to OSM. I think that anyone wanting to use one of the
> approaches should pick the one that best suits their needs."
>
> So while he crafted ODL and thinks it would work, he doesn't actually
> recommend anything, saying basically that we should know best what's
> good for us.

After midnight (in the UK at least), but I need to respond to this one.

I said this because, though I am a lawyer, I am not OSM's lawyer.  I  
joined this list about six months ago or more -- when I started  
drafting and thinking about these licences. I can't and won't  
recommend one to this list.  I use your maps, but I haven't  
contributed geodata and even if I was a longterm contributor to this  
community and felt that I had a right to voice my own opinion on this  
issue, it is way too hard to separate out that personal opinion from  
a professional opinion, as I'm again, not OSM's lawyer and so won't  
be giving OSM advice on what licence to choose.

Thanks!

~Jordan


Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons


Usage of Creative Commons by cultural heritage organisations
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[OSM-legal-talk] Follow up comments

[Jordan S Hatcher]

My apologies if this has been brought up before -- as I mentioned I'm  
playing catch up to this week's posts on the list. I'm going to just  
pull some threads in the conversation and comment on them, rather  
than copying and pasting from people's posts. And just under the  
deadline...

+++

In terms of what the licence covers and various actions:

Copying entire database verbatim, content (data) and all -->  
copyright, database rights, contract
Copying entire database with changes (a derivative database), content  
(data) and all --> copyright, database rights, contract
Taking out all content (data) and making a new database (a derivative  
database --> database rights and contract

+++

Trade secret was mentioned as a "fourth pillar" of protection by JTW.  
I agree that this isn't appropriate/suitable for an open project,  
which I've pointed out on this list before, and in fact pointed out  
as a reason with the Open Data Commons Public Domain Dedication and  
Licence  doesn't waive "unfair competition" in the protocol.



A open project using the Open Database Licence could possibly use one  
of the other areas of "unfair competition" depending on the context  
and the legal jurisdiction:

# Publicity rights;
# Trade mark claims;
# Passing off (which is a lot like trade mark);
# Deceptive advertising;
# Other kinds of unfair methods of competition

+++

I've seen mentioned a few times the ease of administration between  
the public domain, the DBL, and/or the CC licences.  My opinion is  
that _of course_ the public domain dedication will be easier. My  
personal opinion is that hte DBL is easier to administer than the  
current CC licences, but obviously I'm biased.  I really want it to  
be, and Charlotte and I drafted it to be, easy to use and clear in  
terms of what it does and doesn't address.  The text isn't of course  
set in stone and can be improved.

+++

Testing licences in court.  A licence, if it does it's job properly,  
doesn't end up in court because people are clear about its  
obligations. I've always been against this idea that any FOSS or open  
content licence needs to be brought up in court to be effective.   
I'll leave it at that.

+++

Regarding commercial use of OSM materials, as was pointed out that is  
allowed under the current licence, under FOSS like the GPL, and in  
the Open Data Commons Database Licence. This is not a licensing issue  
under the DBL as it doesn't have a commercial restriction.

+++

Regarding enforcing the Open Database Licence via contract. Yes, the  
more you treat the data like a software End User License Agreement  
(EULA) the clearer the contract case -- clickwrap, terms and  
conditions, signing up to access the API, and the like would all be  
ways to strengthen the contractual relationship.

+++

I think one of the questions is, what does the current CC licence  
cover now?

The licence is I believe CC-BY-SA 2.0, which is the former "generic"  
version and based on US law.


It does not:

-- explicitly state that it operates by contract as well as a  
copyright licence 
-- cover EU database rights

The ODL does both of these things.

+++

In relation to the preceding, the ODL is designed to work worldwide  
and to provide an easier to use and more tailored legal tool that CC- 
BY-SA, which was the previous option. I think it does this, but again  
I'm biased.

However the ODL does not:

-- create copyright in jurisdictions where none exists 
-- create database rights where none exist (either because the  
database doesn't qualify or because database rights don't exist).

Is the licence going to work perfectly in every jurisdiction for  
geodata?  I don't know. Are there problems of copyrightability and  
existence of database rights and relying on contract to enforce the  
rights? Yes. See Charlotte Waelde's article quoted elsewhere (she is  
one of the co-authors of the ODL by the way).

+++

I think that there has been some mention of the public domain and its  
applicability in some jursidictions, such as France.  I think that  
the PDDL (the other Open Data Commons licence) covers this with the  
use of a BSD style licence as a part of it when the PD dedication  
doesn't work.

Thanks!

~Jordan


Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons


Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007





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Re: [OSM-legal-talk] License

[jo]

On Wed, Feb 20, 2008 at 06:14:29PM +, SteveC wrote:
> If you have anything further to add then please raise it on this list  
> before midnight on Friday 22nd. 

I've refrained from adding commentary as, not having been an 
active contributor for while i don't want to assume any role in a 
"community process". This is no vote, but a consultation for the
benefit of the OSMF Board. It has been an amazing discussion.
But I can't resist chucking 2 cents in if there is a midnight 
deadline on airing opinions.

The essay "Non-commercial isn't the problem, ShareAlike is"
helped convince me that rights-based licenses for data block 
reuse, and as more licenses flourish, the problem worsens:
http://opencontent.org/blog/archives/347 or just this image:
http://mirrors.creativecommons.org/blimg/cc-tw-license-compatibility-wizard.png

"How can a community so focused on freedom", he asks, "approve of 
any restrictions?" And so we get into deep philosophical questions,
does evil exist, does intent matter, what does "the" mean, etc. 
With respect, i don't expect to find the answers on osm-talk-legal.

I did find a lot in common with what the Archbishop of Canterbury
was saying recently about Sharia law, a discussion which he claimed 
"in fact opens up a very wide range of current issues, and requires 
some general thinking about the character of law... we need a 
fair amount of 'deconstruction' of crude oppositions... 
It is always easy to take refuge in some form of positivism." 

To choose one rights-based license is like choosing one rights-based 
legal framework, to the deliberate disclusion of potentially 
incompatible others. (And those who do not agree, have the right 
to pick up their data and go back where they came from).

Decisions get made on the basis of what appears to us to be the 
"nature of law", a set of accreted and perhaps unexamined assumptions 
about property, protection, enforcement and agreement, created 
over many centuries by and for a few "ruling" wealth-holders. 
So following a path of law leads us to more law. We Need law to 
protect ourselves against people wielding bigger law. Talking the 
language of law constrains what we think and mutates our concerns.

I have no anti-ODL beef, it probably presents a best set of solutions
to what are currently identified as legal problems. CC-BY-SA 
has always caused community problems with ShareAlike, now 
thrown into sharp relief by the maturing discussion over the last
few years and the number of new projects in a similar situation.
Progress may be slower with a PD-BY project, but this will
bypass this gripping over-concern with the letter of the law.

But the legal framework will change, the context of what other 
projects are doing will change, and these decisions will need to 
be made again. When that happens, this whole discussion and the 
disparately motivated PD arguments will still be there, unchanged. 

As someone pointed out several hundred emails ago, 95% of the 
OSM contributing community just does not care about license terms.
Of the 5% talking here fractionally few, perhaps none in the end,
will insist on revoking their contributions. Whether "relicensing"
goes in a PD+BY or ODL direction the technical issues in reverting
selective edits to an "approved" state will remain the same. 
The choice probably is not going to make that much difference. 
So pick the option that makes access and reuse easiest.

love, 


jo


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Re: [OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL

[Jordan S Hatcher]

>
> On 22 Feb 2008, at 14:14, Frederik Ramm wrote:
>> Hi,
>>
>> the current state of discussion/analysis is that a license like
>> ODL would offer sound legal protection only where database law
>> exists  (e.g. in Europe), while for other jurisdictions (e.g. the US)
>> we'd have to rely on the contractual aspect which may be hard because
>> the contract doesn't bind third parties to whom the data might be
>> passed. How hard exactly it is seems to be a bit murky at the moment.
>>
>> In this post, I want to focus solely on Europe, i.e. places where
>> database law exists.
>>
>> As far as I understand, database law is a kind of copyright for data
>> collections, and it means that if you extract a significant amount of
>> data from a database you need permission from the creator of said
>> database.

Richard pointed out the remainder of what I would have said  
correctly, which I excerpted below.  I would like to clarify that I  
think that the only legal restriction that would most likely hold in  
terms of taking data from a database and creating a new database  
would be the database right and contract -- copyright is likely not  
to be a factor. And I'd like to re-iterate that the standard is not  
"significant" but rather "substantial", which tracks the language of  
the Database Directive.

>>
On 22 Feb 2008, at 15:23, Richard Fairhurst wrote:

> Frederik Ramm wrote:
>
>> So as long as I extract non-significant amounts, the data would
>> essentially be PD?
>
> You could use it as such, yes.
>
> ODC-Database expressly says that it considers a "Derivative Database"
> to comprise a "_Substantial_ part of the Data" (my emphasis). That's
> whether it's applied via contract, database right or copyright. That
> much is unambiguous.
>
> But you couldn't, of course, recombine it with a large number of other
> insubstantial extracts, because then you have made a Substantial
> extract.
>
> On what's substantial and what isn't, for an evaluation under EU
> database right, see Charlotte Waelde's oft-cited paper
> (http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf) on
> pp28-32. Especially the top of page 32:
>
> "The Directive provides that a lawful user of a database has the right
> to extract and/or re-utilise an insubstantial part of the contents.
> This is subject to the proviso that any acts by the lawful user must
> not conflict with the normal exploitation of the database or
> unreasonably prejudice the legitimate interests of the maker of the
> database. Any contractual provision seeking to override this measure
> is null and void."
>
> Which I think is what I said above, and what ODC-Database reflects.
>
> Dr Waelde also notes that under EU database right it's not just a
> matter of percentage, but also of a "qualitative analysis". To me it
> appears clear that a single street name isn't substantial, the whole
> of Cambridge is. We could spend hours discussing this but I suspect it
> comes down to "don't take the piss".
>
> cheers
> Richard


Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons


Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007





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Re: [OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL

[Lauri Hahne]

On 22/02/2008, Frederik Ramm <[EMAIL PROTECTED]> wrote:
>  What I'm interested in now is the extraction of a "not significant"
>  amount of data. I  understand that "significant" is not really
>  defined but let's assume I would extract the map data for a little
>  village, say 2000 nodes and 200 ways, or about 0.1% of the data we
>  have - surely not "significant".

At least the Finnish implementation talks about significance in either
quantitative or qualitative way. This isn't significant in
quantitative sense but could be considered significant in qualitative
sense.


-- 
Lauri Hahne

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Re: [OSM-legal-talk] Attempt to clarify

[Frederik Ramm]

Hi,

> there is, in my opinion, nothing ethically
> wrong with putting a value on intellectual work and demanding
> compensation (money, attribution, sex, ...) for it.

Entirely new licensing options come to mind!

Bye
Frederik

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Re: [OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL

[Richard Fairhurst]

Frederik Ramm wrote:

> So as long as I extract non-significant amounts, the data would
> essentially be PD?

You could use it as such, yes.

ODC-Database expressly says that it considers a "Derivative Database"  
to comprise a "_Substantial_ part of the Data" (my emphasis). That's  
whether it's applied via contract, database right or copyright. That  
much is unambiguous.

But you couldn't, of course, recombine it with a large number of other  
insubstantial extracts, because then you have made a Substantial  
extract.

On what's substantial and what isn't, for an evaluation under EU  
database right, see Charlotte Waelde's oft-cited paper  
(http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf) on  
pp28-32. Especially the top of page 32:

"The Directive provides that a lawful user of a database has the right  
to extract and/or re-utilise an insubstantial part of the contents.  
This is subject to the proviso that any acts by the lawful user must  
not conflict with the normal exploitation of the database or  
unreasonably prejudice the legitimate interests of the maker of the  
database. Any contractual provision seeking to override this measure  
is null and void."

Which I think is what I said above, and what ODC-Database reflects.

Dr Waelde also notes that under EU database right it's not just a  
matter of percentage, but also of a "qualitative analysis". To me it  
appears clear that a single street name isn't substantial, the whole  
of Cambridge is. We could spend hours discussing this but I suspect it  
comes down to "don't take the piss".

cheers
Richard


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Re: [OSM-legal-talk] Attempt to clarify

[Frederik Ramm]

Hi,

> The difference here is
> that some OSM participants want to trade, and you want to give away.
> Neither is ethically superior or inferior.

I could name a few ethical concepts that say otherwise.

As far as my "loaded language" goes, I mean every word of it, but I  
should perhaps put this into perspective and add that even if you  
refuse to publish something PD and instead publish on a share-alike  
basis, I still like you more than the guy who publishes only  
binaries, or only map images with no further usage rights.

Someone else said that fights between similar-minded people sometimes  
seem the harshest. I'm all for a free world map but I have a slightly  
different conception of what "free" should mean. Apart from that  
we're all on the same side. Your "free" is not so bad that I'd turn  
my back and leave if you were to win. I'd just quietly grumble and  
point out my ethical superiority.

Bye
Frederik

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Re: [OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL

[Frederik Ramm]

Hi,

>> What would be the legal situation? The data is not copyrightable, and
>> its extraction does not fall unter database law. Would we, in spite
>> of that, try to bind the user to ODL restrictions (attribution/share-
>> alike) by contract?
>
> No.

So as long as I extract non-significant amounts, the data would  
essentially be PD?

Bye
Frederik

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[OSM-legal-talk] Database Law / extracting non-significant amounts of data, and ODL

[Frederik Ramm]

Hi,

the current state of discussion/analysis is that a license like  
ODL would offer sound legal protection only where database law  
exists  (e.g. in Europe), while for other jurisdictions (e.g. the US)  
we'd have to rely on the contractual aspect which may be hard because  
the contract doesn't bind third parties to whom the data might be  
passed. How hard exactly it is seems to be a bit murky at the moment.

In this post, I want to focus solely on Europe, i.e. places where  
database law exists.

As far as I understand, database law is a kind of copyright for data  
collections, and it means that if you extract a significant amount of  
data from a database you need permission from the creator of said  
database.

The ODL would be styled such that this permission is granted  
automatically, provided that the user complies with the license (i.e.  
the attribution and share-alike stuff).

What I'm interested in now is the extraction of a "not significant"  
amount of data. I  understand that "significant" is not really  
defined but let's assume I would extract the map data for a little  
village, say 2000 nodes and 200 ways, or about 0.1% of the data we  
have - surely not "significant".

What would be the legal situation? The data is not copyrightable, and  
its extraction does not fall unter database law. Would we, in spite  
of that, try to bind the user to ODL restrictions (attribution/share- 
alike) by contract?

And would the same problems that we're talking about for non-European  
jurisdictions then apply here as well (i.e. I extract the data and  
breach the contract, publish it, another guy uses it)?

Bye
Frederik

-- 
Frederik Ramm  ##  eMail [EMAIL PROTECTED]  ##  N49°00.09' E008°23.33'



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Re: [OSM-legal-talk] Attempt to clarify

[Gervase Markham]

Frederik Ramm wrote:
> Well. Option 1 would be a honest PD. Option 2a would be a "well we
> wanted something else and we got this" PD. Sounds like losing face to
> me.

Well, I don't care about losing face if you don't. (Although, as a PD 
advocate, you wouldn't lose face anyway.) So this isn't a problem. :-)

Gerv


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Re: [OSM-legal-talk] Attempt to clarify

[Gervase Markham]

Ian Sergeant wrote:
> There are some additional concerns with your option 2 (ODL) not working.
> 
> 1. It may "not work", in a way not intended.  

What way can you envisage it not working, other than moving in a PD 
direction?

> That is, as the law becomes
> settled in various jurisdictions, it may become necessary to review the
> licence again in a relatively short timeframe.  This may trigger yet
> another data-loss event, as people are being tracked down to agree once
> more to a licence change.  Each of these events are harmful to the project,
> and we should try and avoid them whereever it is possible to do so.

Why would we need to change the licence? If it were ineffective, we 
would either keep it in place anyway as a social signal, or use whatever 
mechanism everyone else was using to bypass it. There wouldn't be a need 
for a relicensing, or data loss.

> 2. If the licence doesn't work it will have no legal effect on people
> wanting to avoid the SA provisions.  However, it will still impose a
> barrier of sorts on people wanting to use the OSM data for new and
> innovative purposes.  Making them get legal opinions, interpreting licences
> of a style for which limited precedents exist.

Again, if there's a loophole, we can use it too if we decide it's no 
longer worth having the licence.

Gerv

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Re: [OSM-legal-talk] transitive contracts

[Gervase Markham]

Frederik Ramm wrote:
> No comments on that by anyone? Rob, Gervase - you're the ones who are  
> most outspoken about copyleft, would such a solution seem acceptable  
> to you, or do you need copyleft to the bitter end?

It's not to the bitter end; copyright restrictions fall off after 50 
years or whatever. But I guess that if we are using a multiple-law 
strategy, some of the laws don't have expiries. Can anyone tell us what 
the situation is there, for certain?

I would strongly support an expiry at something like 20 years, and I 
think OSMF should seriously consider that if it turns out that the 
contract or other parts of the legal protection are perpetual. But I 
don't think I'd support it anything like as soon as a year. I doubt we 
could come to an agreement on a level that would keep PD people happy 
and copyleft people happy. :-|

Gerv

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Re: [OSM-legal-talk] transitive contracts

[bvh]

On Wed, Feb 20, 2008 at 08:37:49PM +0100, Frederik Ramm wrote:
> Hm. Suppose we used a restrictive copyleft license lice the ODL, but at 
> the same time said that 12 months after being last edited, we release 
> stuff into the public domain.

I really like this idea!

cu bart

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