[OSM-legal-talk] Q&A with a lawyer
the OSMF LWG recently had a couple of calls with Clark Asay, who has generously agreed to give OSMF legal advice concerning the new license. i've attached the write up of the first of the calls, in which we went over a series of short questions that grant and i had previously extracted from ulf's compendium of use cases and open issues. clark had lots of useful thoughts which are well worth reading and discussing here. the most important issues are highlighted in yellow, some of which require community input to resolve. we had the second call earlier today and we'll be writing up the results of that real soon now. cheers, matt Q_A_Session_with_Clark_Asay.pdf Description: Adobe PDF document ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] Q&A with a lawyer
On 11 May 2009, at 23:43, Matt Amos wrote: > the OSMF LWG recently had a couple of calls with Clark Asay, who has > generously agreed to give OSMF legal advice concerning the new > license. i've attached the write up of the first of the calls, in > which we went over a series of short questions that grant and i had > previously extracted from ulf's compendium of use cases and open > issues. > > clark had lots of useful thoughts which are well worth reading and > discussing here. the most important issues are highlighted in yellow, > some of which require community input to resolve. > > we had the second call earlier today and we'll be writing up the > results of that real soon now. > Very useful Matt. I have just concluded an email discussion with Jordan following our lawyers review of 1.0 who has answered some points but is now saying that he would need someone to pay him to answer more of them which leaves things in a rather unsatisfactory state given that I am not prepared to pay two lawyers to talk to each other! We have not had any response to the review from the OSMF council to date. So... could you help me with a couple of the points raised by our lawyer at your next Q and A? The review of 0.9 is here: http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO I am particularly interested in a view of the following: Regarding point 3 could someone confirm that the Factual Information License has now been dumped in favour of the 'Database Contents License'? This is implied by the latest release candidate but hasn't been discussed on the list to my knowledge. It seems a lot more applicable but our lawyer hasn't reviewed it. Point 9 - Governing Law - Lets assume someone in China creates a new work based on OSM and claims from Chinese law that it is not a substantial extract. That is then used by someone in Vietnam to combine it would something else and manipulate it which makes it more like the original OSM DB and then someone in the UK uses that DB. Can one procecute the final UK company using UK law or would one need to travel to Vietnam and China to do this given that some of the interpretations happened under their law? Point 13. Our lawyer states that the OSMF could change the license as they see fit at any time, and of they can then so can anyone else who publishes a derivative DB as far as I can see which would be alarming. Can you ask who can change the license and by how much. Our lawyer writes: "Clauses 3.3 & 9.3 – The OSMF reserves the right to release the Database under different terms. It is not the current intention of the parties to permit exclusive use of the Database to any single person. However, this provision would permit the OSMF to withdraw the share alike and free access nature of the Database and even to sell it on commercial and exclusive terms. Likewise the OSMF expressly reserves the right to “stop distributing or making available the Database.”" Thanks, Peter > cheers, > > matt > < > Q_A_Session_with_Clark_Asay > .pdf>___ > legal-talk mailing list > legal-talk@openstreetmap.org > http://lists.openstreetmap.org/listinfo/legal-talk ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Q&A with a lawyer
On Tue, May 12, 2009 at 3:17 AM, Peter Miller wrote: > I have just concluded an email discussion with Jordan following our > lawyers review of 1.0 who has answered some points but is now saying > that he would need someone to pay him to answer more of them which > leaves things in a rather unsatisfactory state given that I am not > prepared to pay two lawyers to talk to each other! We have not had any > response to the review from the OSMF council to date. i guess its hard for him when he's volunteering so much of his own time to answer all the questions put to him. > So... could you help me with a couple of the points raised by our > lawyer at your next Q and A? > The review of 0.9 is here: > http://wiki.openstreetmap.org/wiki/ITO_World/ODbL_Licence_0.9_legal_review_for_ITO we'd be happy to. lets discuss them now, so we've got a full understanding. > I am particularly interested in a view of the following: > > Regarding point 3 could someone confirm that the Factual Information > License has now been dumped in favour of the 'Database Contents > License'? This is implied by the latest release candidate but hasn't > been discussed on the list to my knowledge. It seems a lot more > applicable but our lawyer hasn't reviewed it. my understanding is that the FIL has been renamed to the DbCL and has been considerably simplified. in our discussions we are no longer talking about the FIL. > Point 9 - Governing Law - Lets assume someone in China creates a new > work based on OSM and claims from Chinese law that it is not a > substantial extract. That is then used by someone in Vietnam to > combine it would something else and manipulate it which makes it more > like the original OSM DB and then someone in the UK uses that DB. Can > one procecute the final UK company using UK law or would one need to > travel to Vietnam and China to do this given that some of the > interpretations happened under their law? Clark agreed with your lawyer that having a choice of law is the normal "done" thing in contracts, and suggested that we would want to consider either US or UK law. apparently this choice of law doesn't have an effect on the IP rights and is mainly for interpreting the contractual parts of the license. in the situation you describe, it is my understanding that we would have a better chance prosecuting the final UK company under IP laws (e.g: copyright, database rights) on the original database. given the difference in IP laws in vietnam or china (i'm guessing) it would be easier to go after them based on the contractual parts of the license. one of the things i'm gaining a better understanding of, having spoken with Clark, is that no license is ever fully watertight and we are highly unlikely to be able to defend all of our rights in all possible jurisdictions. in this regard i think we will have to strike a balance with practicality and license brevity. > Point 13. Our lawyer states that the OSMF could change the license as > they see fit at any time, and of they can then so can anyone else who > publishes a derivative DB as far as I can see which would be alarming. > Can you ask who can change the license and by how much. Our lawyer > writes: "Clauses 3.3 & 9.3 – The OSMF reserves the right to release > the Database under different terms. It is not the current intention of > the parties to permit exclusive use of the Database to any single > person. However, this provision would permit the OSMF to withdraw the > share alike and free access nature of the Database and even to sell it > on commercial and exclusive terms. Likewise the OSMF expressly > reserves the right to “stop distributing or making available the > Database.”" this was one of the questions in the write-up and was discussed again in the second call. my feeling is that this isn't an issue for the license, but instead forms part of the contribution agreement between contributors and the OSMF. Ulf did some work putting a three-point contribution agreement together and, as soon as its ready, i'm sure it will be posted here. the contribution agreement is something that we'll be working on in the LWG and we'd like to have your input. discussions up to now have focussed on the idea of the OSMF being required to hold a membership vote before being able to change the license, although we haven't yet gone into details of the mechanics (i.e: majorities, etc...) i'm sure you understand the need for the OSMF to reserve the right to discontinue hosting the database, since hosting and distributing the database requires a great deal of resources. while these resources are currently available, it seems unwise for OSMF to legally commit to providing them forever. cheers, matt ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Q&A with a lawyer
Hi, Matt Amos wrote: > one of the things i'm gaining a better understanding of, having spoken > with Clark, is that no license is ever fully watertight and we are > highly unlikely to be able to defend all of our rights in all possible > jurisdictions. I think we can all live with not being able to defend the rights in all jurisdictions. What I'm concerned with is mainly: How big is the risk of someone "whitewashing" our data from the contractual part of the ODbL, then introducing it to a large jurisdiction without something like a database directive (the US?), and thereby leaving us with only plain copyright which (correct me if I'm wrong) we choose not to exercise by applying the DbCL? As a commercial user, I am very interested in having the same set of rules binding my competitors in every country. Countries with economies so negligible that they don't subscribe to international IP law are of little interest to me in that regard (I am unlikely to face competition from companies in North Korea et al.), but if some kind of "loophole" would permit rogue US companies to use OSM data free of any restrictions while I, in Europe, am bound by them would be unsatisfactory. Bye Frederik -- Frederik Ramm ## eMail frede...@remote.org ## N49°00'09" E008°23'33" ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Q&A with a lawyer
Hi, Frederik Ramm wrote: > What I'm concerned with is mainly: How big is the risk of someone > "whitewashing" our data from the contractual part of the ODbL, I should have explained: Such "whitewashing" would require someone to breach the contract by removing all licensing information and then passing on the data to a third party who then cannot become party to the contract. The important bit, to me, seems that said third party cannot be accused of any breach then. I have compared this to "grey imports": Sony sells batch of TV sets to distributor with a contract saying "only for distribution in Ukraine"; distributor breaches contract and sells in Germany; if I now buy a TV set Sony has absolutely no legal right to demand that I return the TV or that I follow whatever contractual obligations they normally impose on German customers etc.; I am a perfectly legal Sony TV set user even if I *knew* that the distributor was breaching his contract. (This is something entirely different from buying stolen goods, because Germany and probably many other jurisdictions have special rules that make it impossible to become the rightful owner of something that was stolen in the first place.) Bye Frederik -- Frederik Ramm ## eMail frede...@remote.org ## N49°00'09" E008°23'33" ___ legal-talk mailing list legal-talk@openstreetmap.org http://lists.openstreetmap.org/listinfo/legal-talk
