Re: [OSM-legal-talk] Guideline review: Substantial
On Wed, Apr 30, 2014 at 10:09:08AM -0700, Luis Villa wrote: > On Tue, Apr 29, 2014 at 9:39 PM, Paul Norman wrote: > > > > represents a quantitatively substantial part of the general contents of > > > > the protected database. A quantitatively negligible part of the > > contents > > > > of a database may in fact represent, in terms of obtaining, > > verification > > > > or presentation, significant human, technical or financial investment. > > > (Para 71) > > > > > > In other words, a small chunk of a large database can be qualitatively > > > substantial if the cost of "obtaining, verification, or presentation" of > > > that small chunk was substantial. The court goes on to say that it > > > doesn't matter if the small chunk is, by itself, valuable - what matter > > > is the work done to put it into the database. What qualifies as a > > > substantive "investment" is left as an exercise for the lower courts. > > > (One German case I've found seemed to presume that 39,000 Euro was a > > > substantive investment, but that was not the primary point being argued > > > in that case so I wouldn't rely on the number being that low.) > > > > Putting BHB into an OSM context, what seems to matter is mapping effort. > > That makes sense - 100 detailed POIs are worth more than 100 points with > > only building=yes. Of course mapping effort is harder to measure... > > > > Hard to measure, but at least likely the right framework. i would define insubstantial as less than 1 day of work (8 hours) of a medium experienced mapper (or 10 hours or 24 hours) this could be easily acomanied by rules fitting standard case like we consider one day work to be - 50 poi on area smaller than X - 400 adress points on area smaller than X - outines of 200 features where good imaginery is present (only outlines, no other tags) - ... or number divided by 3 if area is larrger than X there would be some technical discussion on all the rules, but the underlying standard should be stable. michal -- michal palenik www.freemap.sk www.oma.sk ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
[OSM-legal-talk] Guideline review: Substantial
All, Although I have not read up on any database legal cases (and do not have the time to), I do have some concerns as to the definition of "substantial". My assumption is that insubstantial use means that the ODBL does not apply (and therefore attribution and share-alike does not apply). If this is not the case then additional information may help. As for the term "substantial", the comparison I have always drawn is with copyright of text: >"In the Infopaq case, the European Court of Justice reviewed the Information Society Directive (2001/29) and determined that the reproduction of 11 consecutive words from a newspaper article may constitute an infringement of copyright in the article, provided that the extract contains elements which are the expression of the intellectual creation of the author." > http://www.lexology.com/library/detail.aspx?g=464fb6fb-335b-4286-bb67-f84c4be0747a As such I've always treated the word "substantial" to basically mean anything useful. So for example, if you are using OSM data with the aim of producing a village map, then extracting OSM data for that village would, in my opinion, constitute a substantial use. To me an insubstantial use would be a partial extract for the purpose of demonstrating a proof of concept (e.g. a few features from the village to demonstrate the potential of using OSM data), or for the purpose of critiquing something in OSM. An OSM contributor may have spent a significant amount of time micro mapping a village. By attempting to define "substantial" we are setting a level that basically says, if you don't contribute more than this level, your work in insubstantial. :-( Worse still we are weakening our case if this ever gets challenged in court. If someone wants to use OSM data and believes their case is insubstantial then they should be willing to follow it through the legal system. If they're not willing to do this, then use our data as per the ODBL instructs. So to conclude, in my view we should concentrate our efforts on the other areas. Supporting those who want to create a village map by clearly explaining how to attribute OSM and when share alike kicks in would go a long way to helping out. Simon's diary entry helped me to understand this a lot better: http://www.openstreetmap.org/user/SimonPoole/diary/21225 Regards, Rob ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
On 30/04/2014 06:39, Paul Norman wrote: Bringing it back to the guideline, I'd suggest - Dropping references to villages or areas - Dropping reference to 100 features; the number doesn't seem in line with quantative - Reframing in terms of mapper effort, i.e. the cost of "obtaining, verification, or presentation" - Referring to features and noting that a feature like a building may be formed with multiple OSM elements (i.e. multiple nodes) but is one feature. I could try writing some text if there's agreement on these points. Alternatives of course are always welcome, but this has been previously exhaustively discussed and has been out there for 5 years almost to the day without negative effect. I'd like to emphasise to all that these are guidelines, reasonable rules of thumb rather than a rigorous attempt codify the ODbL with regard to geospatial data. They need to be reasonable short and understandable to folks who don't have a legal department, are probably not fully engaged with the jargon of OSM and want to do right by us. They need to say something about our qualitative intentions as a community, this being useful to commercial entities considering using our data ... for the most part they want to do right by us too. [And of course also they should not open some loophole for the less good intentioned.] To that end, I would really like to keep references to real things and nice round numbers. My personal take is that we have been quite clever in defining insubstantial rather than substantial, (a question raised by Luis), and using low, but defined numbers. We are simply saying that if you genuinely doing things with small amounts of data, locations in your book for example, hey, no problem, we are happy. And the cleverness is that we are silent on anything bigger. I have, by the way, added a comment in the summary that the easiest solution by far is to just attribute us and contribute back any data improvements! Mike ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
Luis, Thank you very much for your thoughtful comments, I hope you don't mind that I've referenced the mail link on the page for resource reading! On 30/04/2014 00:10, Luis Villa wrote: I think it is pretty clear that this rule is only for OSM/ODBL, but it wouldn't hurt to make that more explicit. (It *has* to be only about OSM, because you can't judge whether something is substantial without knowing about the nature of the database (quantitative) and how the data was obtained (qualitative).) Good point and done on the general Community Guideline page. Few other comments: * It might be helpful to link to http://wiki.openstreetmap.org/wiki/Map_features when talking about Features, assuming those are the same concept, which I admit I'm still not 100% sure about? * It might be helpful to explain better why the page is focused on insubstantial rather than substantial. * The village/town distinction doesn't seem very helpful to me. If the goal really is to push out commercial projects, very few commercial projects are going to be viable at the town level - the vast majority will be national level, with a few exceptions for London/Paris/NY-level cities. So saying "you can use towns" would still block out most commercial use while perhaps allowing some small governments to do useful things. But I may be misunderstanding the goal here? * I find "This definition aims to:...Build a case for the "qualitative" interpretation of Substantial" to be slightly confusing - I /think/ that what is meant is something like "This guideline attempts to clarify what uses would constitute a substantial qualitative use of OSM data" (perhaps implying that many important uses are not going to be quantitatively substantial?), but I'm really not sure. I would clarify or remove that. I've done some rewording to the summary which I hope addresses these. I've not added a link to the map features page, they are not (really) the same concept. A "Feature" is how an ordinary map viewing individual would see things: a single road (even if broken into different segments for speed limits), a lake, a pub (even if tagged with multitudinous detail on the beer and ATM machines). A general note to all: these guidelines are directed at folks who are not familiar with OSM, so need to worded accordingly using simple, hopeful translatable, wording and sentences. * Hope this is helpful- Indeed! Mike ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
From: Luis Villa [mailto:lvi...@wikimedia.org] Sent: Wednesday, April 30, 2014 10:09 AM To: Licensing and other legal discussions. Subject: Re: [OSM-legal-talk] Guideline review: Substantial > Without going further into the details of the many drafting shortcomings > of ODBL (which, to be clear, are partially my fault!) suffice to say > that I think that the interactions of 6.0 and 2.2(c) are not > well-defined, especially in jurisdictions where there is no applicable > statutory law, and/or where applicable caselaw says there are no > database rights. I view 6.0 as equivalent to 2.a.2 from CC 4.0 licenses, which state that you do not need to comply with the license where fair use or similar applies. In the ODbL case you might be dealing with a jurisdiction where fair use type rights don't exist because data-type licenses are only under contract law. I haven't seen this as a practical issue for three reasons: 1. The ODbL doesn't impose requirements in a number of use cases (4.5 and 6.2 most obviously), making it a moot point in those cases 2. Most of the interesting use cases wouldn't be fair use anyways, dealing with using most or all of the database for commercial purposes in a public manner 3. I live in BC, where was a case involving someone doing essentially what I do for OSM mapping and it was covered by copyright. The OSMF is in the UK, where database rights exist. > I agree that in practice, courts are likely to find ways to work around > it. But the EU CJ was quite explicit in BHB about comparing to the > entire size of the dataset, so best not to rely on that as a primary > tool. Something else that hasn't been touched on is the crowd-sourced nature of OSM and use of other databases. Regardless of the exact threshold for substantial, I can easily imagine a scenario where a sub-set of OSM is not a substantial part of OSM, but is entirely from a smaller third-party database and is a substantial part of that third-party database. I frankly don't have a clue how this would be considered. I'd expect the third-party database owner would have no problem suing in case of a license violation (e.g. failure to attribute), but could the OSMF? For that matter, how does this work with Wikipedia? Say a European Wikipedia contributor assembles a database and then inputs that into Wikipedia. How are those database rights treated? > While I don't like the 100 feature reference (it seems awfully arbitrary > to me, and small) it could be salvaged if one explained _and justified_ > that in the common case, mapping 100 features is likely to represent a > substantial investment of time, effort, etc., in gathering the data. I > just don't know enough to know if that is doable. Is 100 features qualitatively substantial? I'd say, it depends. 100 place=village nodes with no other tags mapped from aerial imagery is probably not qualitatively substantial. 100 POIs tagged in great detail might be. Does the fact that mappers do not receive compensation from the OSMF influence what qualitatively substantial is? Does the small OSMF budget? ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
On Tue, Apr 29, 2014 at 9:39 PM, Paul Norman wrote: > > From: Luis Villa [mailto:lvi...@wikimedia.org] > > Sent: Tuesday, April 29, 2014 3:10 PM > > To: Licensing and other legal discussions. > > Subject: Re: [OSM-legal-talk] Guideline review: Substantial > > > > Reminder that Simon has pointed out here quite recently that ODBL claims > > to be a binding contract that can apply when no license is necessary. > > So, there's two cases here. One is in Europe. You might have trouble > enforcing a contract which restricts you from acts permitted in the > directive. I'm not sure of this interpretation, but won't further > consider it because the point is moot, since 6.0 explicitly says that > the ODbL doesn't restrict the rights you have under the exceptions to > the database right. > Without going further into the details of the many drafting shortcomings of ODBL (which, to be clear, are partially my fault!) suffice to say that I think that the interactions of 6.0 and 2.2(c) are not well-defined, especially in jurisdictions where there is no applicable statutory law, and/or where applicable caselaw says there are no database rights. > The other more complicated one is outside Europe, where you'd be looking > at the ODbL as a copyright license or contract. In that case, we still > want the guideline to be in harmony with the database directive for a > few reasons [snip] > Assuming OSM finds EU law desirable[1], then I agree that it would be good if the license was consistently interpreted in light of EU interpretation of the DD. It just isn't clear to me that the actual text of the license achieves this goal. So something to add to the list of clarifying wiki positions might be a firm statement on this position. [1] Which is really, seriously, something OSM should think hard about before making a statement - if there are edge cases in EU law that could blow up OSM, they need to be looked at very seriously - the last thing you'd want to do is say "we firmly believe this should be interpreted in light of EU database directive caselaw" and then have someone say "but what about X, doesn't that make the whole enterprise look shaky"? > > This strongly suggests that a European court would evaluate > > "substantial" in the quantitative sense with regards to the entire 2B > > records in OSM, not with regards to the database the information was put > > into. It would be interesting to see what courts around Europe are > > finding as "substantial" in this sense; I see one reference to a French > > court that found that taking 15% was not quantitatively substantial, and > > the GRADE paper linked to from the wiki suggests it would have to be > >50%. > > But I suspect this would vary a lot based on the facts of the case, > > and that a skilled lawyer could raise or lower the number. And of course > > in the case of a database as large as OSM a court might try to change > > their mind. > > OSM has ~250M features. The difference from 2B is for technical reasons > to do with the data model. Seeing the percentages that are being used > for substantial, I think anything that is quantatively substantial will > be qualitatively substantial. > Agreed that anything that is quantitatively substantial will likely also be qualitatively substantial. The reverse may not be true, so OSM (and perhaps these guidelines?) would likely be well-advised to focus on building the case for qualitative substantiality as defined in BHB. I think maybe that is what the current statement on the page is trying to get at, just not clearly? > I also suspect that OSM has two key differences from anything else > considered. One is the size and worldwide scope - Great Britain is ~2% > of the planet-wide data, but anyone trying to work with all of Great > Britain is hardly likely to not consider it substantial. > I agree that in practice, courts are likely to find ways to work around it. But the EU CJ was quite explicit in BHB about comparing to the entire size of the dataset, so best not to rely on that as a primary tool. > Another is applicability to database of geographic information. I'd > defer to someone who's more familiar with them, but I believe the > Ordinance Survey treats *much* smaller extracts of their data as > substantial. > Lots of things that big rightsholders do are not supported by law or by ethics, so I wouldn't rely on that. > > For qualitative, the key passage of BHB is: > > > [S]ubstantial part, evaluated qualitatively, of the contents of a > > > database refers to the scale of the investment in the obtaining, > > > verification or presentation of the contents of the subject of the act > >
Re: [OSM-legal-talk] Guideline review: Substantial
Paul Norman wrote: > Is there any relevant case law on substantial? A brief reminder that there are two useful wiki pages: https://wiki.openstreetmap.org/wiki/Statute_law http://wiki.osm.org/wiki/Case_law which collect links to useful papers and cases. In particular Charlotte Waelde's paper contains a long discussion of what might be considered substantial in a geo context post-BHB: http://edina.ac.uk/projects/grade/gradeDigitalRightsIssues.pdf Richard -- View this message in context: http://gis.19327.n5.nabble.com/OSM-legal-talk-Guideline-review-Substantial-tp5804512p5804651.html Sent from the Legal Talk mailing list archive at Nabble.com. ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
Re: [OSM-legal-talk] Guideline review: Substantial
> From: Luis Villa [mailto:lvi...@wikimedia.org] > Sent: Tuesday, April 29, 2014 3:10 PM > To: Licensing and other legal discussions. > Subject: Re: [OSM-legal-talk] Guideline review: Substantial > > Reminder that Simon has pointed out here quite recently that ODBL claims > to be a binding contract that can apply when no license is necessary. So, there's two cases here. One is in Europe. You might have trouble enforcing a contract which restricts you from acts permitted in the directive. I'm not sure of this interpretation, but won't further consider it because the point is moot, since 6.0 explicitly says that the ODbL doesn't restrict the rights you have under the exceptions to the database right. The other more complicated one is outside Europe, where you'd be looking at the ODbL as a copyright license or contract. In that case, we still want the guideline to be in harmony with the database directive for a few reasons 1. The ODbL defines the terms with the same text as the database directive and directly references the EC directive. 2. Different definitions of substantial would result in different allowable actions depending on where you are. To some extent this is going to happen anyways, but if we can avoid additional cases that's good. 3. Europe is probably the only place where the courts have considered the definitions of substantial and insubstantial used in the ODbL. 4. I find it's generally easiest to look at the ODbL as a license database right, rather than a license of copyright or a contract > This strongly suggests that a European court would evaluate > "substantial" in the quantitative sense with regards to the entire 2B > records in OSM, not with regards to the database the information was put > into. It would be interesting to see what courts around Europe are > finding as "substantial" in this sense; I see one reference to a French > court that found that taking 15% was not quantitatively substantial, and > the GRADE paper linked to from the wiki suggests it would have to be >50%. > But I suspect this would vary a lot based on the facts of the case, > and that a skilled lawyer could raise or lower the number. And of course > in the case of a database as large as OSM a court might try to change > their mind. OSM has ~250M features. The difference from 2B is for technical reasons to do with the data model. Seeing the percentages that are being used for substantial, I think anything that is quantatively substantial will be qualitatively substantial. I also suspect that OSM has two key differences from anything else considered. One is the size and worldwide scope - Great Britain is ~2% of the planet-wide data, but anyone trying to work with all of Great Britain is hardly likely to not consider it substantial. Another is applicability to database of geographic information. I'd defer to someone who's more familiar with them, but I believe the Ordinance Survey treats *much* smaller extracts of their data as substantial. > For qualitative, the key passage of BHB is: > > [S]ubstantial part, evaluated qualitatively, of the contents of a > > database refers to the scale of the investment in the obtaining, > > verification or presentation of the contents of the subject of the act > > of extraction and/or re-utilisation, regardless of whether that subject > > represents a quantitatively substantial part of the general contents of > > the protected database. A quantitatively negligible part of the contents > > of a database may in fact represent, in terms of obtaining, verification > > or presentation, significant human, technical or financial investment. > (Para 71) > > In other words, a small chunk of a large database can be qualitatively > substantial if the cost of "obtaining, verification, or presentation" of > that small chunk was substantial. The court goes on to say that it > doesn't matter if the small chunk is, by itself, valuable - what matter > is the work done to put it into the database. What qualifies as a > substantive "investment" is left as an exercise for the lower courts. > (One German case I've found seemed to presume that 39,000 Euro was a > substantive investment, but that was not the primary point being argued > in that case so I wouldn't rely on the number being that low.) Putting BHB into an OSM context, what seems to matter is mapping effort. That makes sense - 100 detailed POIs are worth more than 100 points with only building=yes. Of course mapping effort is harder to measure... > Some pretty decent summaries of BHB and other relevant caselaw, FYI: Thanks for the links - they're on my to-read list. > Few other comments: > * It might be
Re: [OSM-legal-talk] Guideline review: Substantial
[Before addressing these technical legal issues, I should note that I
represent the Wikimedia Foundation, not OSM/the OSM community. While I hope
that in most cases the perspective of the WMF and the perspective of OSM
are in alignment, OSM members and the OSMF should definitely seek their own
legal counsel.
I'm also required by my ethical obligations to note that I'd be happy to
discuss some of these issues directly with a lawyer representing OSMF, but
my understanding is that there is no such lawyer at this time. If that
changes, please let me know and I can happily discuss with them.]
First, my comments to Paul, and then some comments/questions of my own.
On Tue, Apr 29, 2014 at 1:52 AM, Paul Norman wrote:
> See
>
> https://wiki.openstreetmap.org/wiki/Open_Data_License/Substantial_-_Guidelin
> e for guideline text.
>
> > The Open Data License defines a term 'Substantial' which is then used
> > in the License to define a threshold about when certain clauses come
> > into effect.
>
> Substantial is a term defined in the relevant law, similar to fair use
>
or fair dealing under copyright law. We're not referencing the law at
> all in the guideline. If the use is insubstantial, than the ODbL doesn't
> come into play at all as you need no license.
>
Reminder that Simon has pointed out here quite recently that ODBL claims to
be a binding contract that can apply when no license is necessary.
> Is there any relevant case law on substantial?
>
Three qualifications here: I'm certainly not an expert in EU law; I'm
trying to summarize the state of things at email length, not
treatise-length; and it is not entirely clear that a court should or would
rely on EU law to interpret this part of the license agreement.
That said: my understanding is that there is not much EU CJ caselaw; as of
2012, only seven cases altogether about the database directive, and only
two that touch heavily on the scope of "substantial". The key case on
"substantial" is British Horseracing Board v. William Hill Organization
("BHB"):
http://curia.europa.eu/juris/document/document.jsf?docid=49633&doclang=EN(There
are surely local decisions that may also help inform an
interpretation, but you'd probably have to talk to a local lawyer in your
jurisdiction to analyze those, and even those seem to be fairly thin on the
ground, especially post-BHB.)
Per the directive and caselaw (paralleled by the ODBL), something can be
substantial in three ways: it can be quantitatively substantial,
qualitatively substantial, or substantial as a result of repeated and
systematic extraction of insubstantial parts. (The trial court, and some
commentators, had seemed to think it had to be *both* quantitative and
qualitative - see Derclaye, p.111 below - but BHB is pretty clear that
either is enough.)
The BHB court had this to say about what "quantitative" means in this
context:
The expression ‘substantial part, evaluated quantitatively’, of the
contents of a database ... refers to the volume of data extracted from the
database and/or re-utilised, and must be assessed in relation to the volume
of the contents of the whole of that database. (Para 70)
This strongly suggests that a European court would evaluate "substantial"
in the quantitative sense with regards to the entire 2B records in OSM, not
with regards to the database the information was put into. It would be
interesting to see what courts around Europe are finding as "substantial"
in this sense; I see one reference to a French court that found that taking
15% was not quantitatively substantial, and the GRADE paper linked to from
the wiki suggests it would have to be > 50%. But I suspect this would vary
a lot based on the facts of the case, and that a skilled lawyer could raise
or lower the number. And of course in the case of a database as large as
OSM a court might try to change their mind.
For qualitative, the key passage of BHB is:
[S]ubstantial part, evaluated qualitatively, of the contents of a database
refers to the scale of the investment in the obtaining, verification or
presentation of the contents of the subject of the act of extraction and/or
re-utilisation, regardless of whether that subject represents a
quantitatively substantial part of the general contents of the protected
database. A quantitatively negligible part of the contents of a database
may in fact represent, in terms of obtaining, verification or presentation,
significant human, technical or financial investment. (Para 71)
In other words, a small chunk of a large database can be qualitatively
substantial if the cost of "obtaining, verification, or presentation" of
that small chunk was substantial. The court goes on to say that it doesn't
matter if the small chunk is, by itself, valuable - what matter is the work
done to put it into the database. What qualifies as a substantive
"investment" is left as an exercise for the lower courts. (One German case
I've found seemed to presume that 39,000 Euro was a substantive investm
[OSM-legal-talk] Guideline review: Substantial
See https://wiki.openstreetmap.org/wiki/Open_Data_License/Substantial_-_Guidelin e for guideline text. > The Open Data License defines a term 'Substantial' which is then used > in the License to define a threshold about when certain clauses come > into effect. Substantial is a term defined in the relevant law, similar to fair use or fair dealing under copyright law. We're not referencing the law at all in the guideline. If the use is insubstantial, than the ODbL doesn't come into play at all as you need no license. Is there any relevant case law on substantial? > Less than 100 Features I'm not sure that 100 features will always qualify as insubstantial. As an example, consider a restaurant chain with a database of restaurants, and they have less than 100 locations. If we accept this definition of insubstantial as being true for geospatial databases in general, then their entire database could be extracted. If its true for OSM but not all other geospatial databases, we need to explain why. > The features relating to an area of up to 1,000 inhabitants which > can be a small densely populated area such as a European village or > can be a large sparsely-populated area for example a section of the > Australian bush. This doesn't really work in sparsely populated areas. I think it'd allow extraction of all of Antarctica! It'd basically give no protection to well mapped remote natural areas. ___ legal-talk mailing list legal-talk@openstreetmap.org https://lists.openstreetmap.org/listinfo/legal-talk
