Re: [OSM-legal-talk] Contributor Terms draft changes

[Anthony]

"You agree to only add Contents for which You are the copyright holder (to
the extent the Contents include any copyrightable elements)."

"If You are not the copyright holder of the Contents, You represent and
warrant that You have explicit permission
from the rights
holder to submit the Contents and grant the license below."

Is that right?
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Re: [OSM-legal-talk] Contributor Terms draft changes

[Francis Davey]

On 14 February 2010 19:33, Mike Collinson  wrote:
> We are wanting to introduce dual-licensing for *new* registrants as soon as
> we have the new Contributor Terms nailed down. That means a final review of
> the current wording by legal counsel and then I'll ask for any last(?)
> comments from this list.
>

Good stuff. I've not give it a thorough reading, but thought you might
be interested in a couple of comments (I realise you have counsel to
do this, but since I am also a copyright lawyer, my half-pennyworth
might be of some interest).

[1] "as part of a database only under the terms of one of the
following licenses..."

has two parsings: "only" may modify "database" or the following
phrase. I.e. you might mean (a) that when you sub-license it will only
be as part of a database and only under one of the licences given, or
(b) that when you sub-license it as part of a database (but not when
you otherwise sub-license it) that sub-licensing will only be on one
of the following terms

I hate ambiguity in a contract or licence and usage (a) is the less
usual of the two ways in which "only" is used as a modifier in
English.

[snip]

>
> 1) License violations - can someone sue on the basis of misuse of their
> data?  Our understanding from Counsel is: Yes.  OSMF can on the basis of
> collective/database rights. An individual contributor can if it concerns
> data that they added.  Board suggested that we deal with this via Community
> Guidelines ... for example, asking contributors to be courteous; setting up
> how and when the OSMF would expected to act; name and shame where possible;
> etc. We have therefore made no addition to the Contributor Terms, it is
> already long.

OK. That's clear. At the moment you probably cannot take advantage of
section 101A of the Copyright Designs and Patents Act 1988 which
allows a licensee to sue in certain circumstances. Are you quite clear
that the advantage of short contributor terms outweighs the
flexibility of being able to sue for violation of copyright (rather
than database right)?

The sort of change I envisage would be to insert after "These rights
include, without limitation, the right to sublicense the work through
multiple tiers of sublicensees" the phrase "and to sue for any
copyright violation directly connected with OSMF's rights under these
terms."

Something like that.

[snip]

>
>
> 3) and a tiny plain language change to make it more obvious that an active
> contributor is a person not a bot by using the word "who".

Why not put it beyond doubt by replacing "contributor" with "natural
person", so that you have:

"a natural person (whether using a single or multiple accounts) who"

Since you never defined "contributor" having the term there doesn't
add very much.

Lastly, I am sure this has come up on the list before, so forgive me
as a newcomer not knowing the thinking on it, but if this is a
contract/licence governed by English law, then wouldn't it be sensible
to use the spelling used in the courts of the jurisdiction, i.e.
British English? I have in mind all those uses of "license" for
"licence". I'm happy to go through and make the changes if it would
help 8-).

Good work on this.

-- 
Francis Davey

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Re: [OSM-legal-talk] Contributor Terms draft changes

[Frederik Ramm]

Hi,

Mike Collinson wrote:
> can someone sue on the basis of misuse of their 
> data?  Our understanding from Counsel is: Yes.  OSMF can on the basis of 
> collective/database rights. An individual contributor can if it concerns 
> data that they added.

What would be the legal basis for that?

Say I add a whole town to OSM. You then use that data with blatant 
disregard for the license.

If I want to sue you, then you must have violated a right of mine, or 
broken a contract with me.

Given that we are in the process of throwing away a license that is 
rooted in copyright because we say that copyright doesn't apply - which 
of my rights would you have violated, or which contract broken?

Bye
Frederik

-- 
Frederik Ramm  ##  eMail frede...@remote.org  ##  N49°00'09" E008°23'33"

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[OSM-legal-talk] Contributor Terms draft changes

[Mike Collinson]

We are wanting to introduce dual-licensing for *new* registrants as soon as we 
have the new Contributor Terms nailed down. That means a final review of the 
current wording by legal counsel and then I'll ask for any last(?) comments 
from this list.

We've made some changes in order to try and address concerns raised late last 
year from OSM and OSMF members. Here is a version with recent changes 
highlighted in yellow:

http://docs.google.com/View?id=dd9g3qjp_1kqzg8dhr
 

Here is a summary of what we have done and why:

1) License violations - can someone sue on the basis of misuse of their data?  
Our understanding from Counsel is: Yes.  OSMF can on the basis of 
collective/database rights. An individual contributor can if it concerns data 
that they added.  Board suggested that we deal with this via Community 
Guidelines ... for example, asking contributors to be courteous; setting up how 
and when the OSMF would expected to act; name and shame where possible; etc. We 
have therefore made no addition to the Contributor Terms, it is already long.


2) Third-party ODbL to ODbL conflict with the need to be able to potentially 
change the license over the coming years. I, for one, feel very strongly that 
we must have a mechanism to allow the OSM of the future to have the best free 
and open license they need, as long as it remains with the "free and open" 
boundary, however defined.  I recognise that this causes some incompatibility 
with importing other ODbL data. Our solution is :

a) Reduce the risk that some folks perceive of license change by increasing the 
amount of active contributors needed to change the license from 50% to 2/3;

b) Not make any major change to the Contributor Terms now but handle ODbL-based 
third-party data imports on a case by case basis;  

c) reconsider in one year;

d) Restrict the grant of license in the second paragraph to just the OSMF, 
(i.e. not the end users). Re-introduce the Database Contents License (DbCL) 
http://www.opendatacommons.org/licenses/dbcl/1.0/
  to govern the relation between OSMF and end users.  We had wanted to 
incorporate this in the Contributor Terms for simplicity, but it actually 
complicates things. You will see that a lot of the wording is the same.


3) and a tiny plain language change to make it more obvious that an active 
contributor is a person not a bot by using the word "who".


Mike
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