From: andrzej zaborowski [mailto:balr...@gmail.com]
Subject: Re: [OSM-legal-talk] [Talk-us] press from SOTM US
A related question is whether any agreement like that can be made within
the Contributor Terms. With the thread about the Public Domain OSM
subset when someone said that the PD declaration had no real meaning I
asked myself what made that declaration different from other license
grants (I'm still not sure). But a license, according to Wikipedia, is
an agreement not to sue under some conditions. An agreement not to sue
under some conditions is a license. But the OSMF is bound by the
Contributor Terms to only grant a subset of the two licenses listed in
the CT, in their specific versions. So can it make a statement
declaring that it would not sue under some conditions (e.g. use of the
results of geocoding) and keep publishing data from current
contributions?
The OSMF could state that they won't sue under certain conditions and then
someone could use that statement if later sued by the OSMF. I can't recall
the name of the legal principle off-hand, but an appropriately worded
statement by the OSMF would be binding on them. The decision to sue by the
OSMF is discretionary and they would be stating that they were going to use
their discretion in some cases and not sue. This would not be a
copyright/database license. Most importantly, it would not prevent a
contributor from suing on their own.
It can probably state that it understands the ODbL 1.0 license to allow
users to do this and that under given conditions, or to not
*apply* under some conditions in some jurisdiction (for example in USA).
The OSMF could write opinions but they would only have any value if the
court found part of the ODbL ambiguous. The court's idea of ambiguous could
be quite different from the communities.
But this could also be abused by declaring something that is in contrast
with what OSM contributors think, an extreme case being a statement that
says that ODbL is effectively invalid, or that ODbL = PDDL. That could
perhaps be treated as an agreement not to sue, i.e.
license.
I am not persuaded that a statement like this is a copyright or database
license.
So what kind of clarifications (if any) can the OSMF make
about the licenses?
The problem is the same as human-readable versions of licenses. They aren't
authoritative, and in case of a disagreement with the license text aren't
worth anything.
As has been noted in the Public Domain subset thread, the contributors
can make license statement that they like, but the OSMF can still
enforce the database rights. So a statement by the contributors (e.g.
on OSM wiki) that is not confirmed by the OSMF is not very helpful to
the end user.
Not living somewhere where there are database rights, I'm not sure of this,
but if a contributor uploads a database to OSM (i.e. a .osm file) and then
independently grants the rights to someone else, can that other person then
download the database from OSM, remove all other contributions and use it
under the grant from the contributor? For copyright the answer is a pretty
clear yes.
It's worth noting that the remove all other contributions step is not
trivial. Even a changeset from a contributor is not generally exclusively
their contributions if they have used any existing data.
This is why I don't think a PD declaration from a user, even if legally
binding, is of any practical use. To use it you'd have to remove the
contributions of other users from their uploads and that requires a full
history database for the area
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