Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Erik Johansson]

On Wed, Oct 28, 2009 at 9:08 PM, Matt Amos  wrote:
> On 10/28/09, Ed Avis  wrote:
>> Matt Amos  writes:
>>
>>>let's assume some data are taken and modified and used to generate
>>>tiles. the ODbL would require that the modified data are made
>>>available, regardless of the license of the tiles. if the data were
>>>effectively-PD then there would be no requirement to make the modified
>>>data available (although i guess it would be allowable to trace the
>>>tiles, subject to the ToS of the site). likewise, CC BY-SA requires
>>>that the tiles are CC BY-SA, but requires nothing regarding the
>>>redistribution of the data.
>>
>> You're right.  In a way this is like the source code requirement of
>> copyleft licences for computer software.  So it's one case where
>> the ODBL gives a stronger share-alike than CC-BY-SA.  (I would check,
>> however, that this isn't going to slow the uptake of OSM by sites which
>> want to draw their own maps showing houses for sale, etc.  They would
>> not be happy having to publish that additional data because it could
>> be considered a Derived Database under the ODBL.)
>
> we had a long thread on this a couple of weeks ago (ODbL "virality"
> questions) from which i think the consensus was that linking OSM data
> with data from independent sources creates a collective database,
> rather than a single derivative database.

No that was what The PD/Fairhurst Doctrine states. ODBL seems to mean
that we loose almost everything that is share-alike with the current
license if we don't interpret the collective database loop hole a lot
harder than what The PD Doctrine does.

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On 10/28/09, Ed Avis  wrote:
> Matt Amos  writes:
>
>>these sites are in non-compliance with the license
>>http://wiki.openstreetmap.org/wiki/Lacking_proper_attribution
>
> Would switching to ODBL (or any licence) solve this particular problem?

quite possibly, since ODbL or PD would allow the tiles to be licensed
in whichever way the renderer / cartographer sees fit. but certainly
the ODbL makes the discussions of data licensing and produced work
licensing orthogonal.

>>as a thought experiment, what would happen if i took the latest planet
>>and put it up on my server (let's assume that both i and my server are
>>in the US) with a PD license?
>
> So what then?  One of the copyright holders would have to sue. [...]
>
> Even if the case is not cut and dried, there is certainly enough here to
> keep the lawyers busy for a while.  Which, IMHO, is a strong enough
> deterrent
> for anyone thinking of misusing the data.  Consider how much time and money
> the SCO - Linux case has taken up so far, on a far flimsier basis.
>
> One thing which weakens the case is that there is not a single copyright
> holder.  Certainly copyright assignment to a single entity such as the
> OSMF would make it easier to sue.

which of the contributors out there has the funds to hire a lawyer in the US?

copyright assignment has been discussed before, but i remember there
were a lot of objections. it seems that copyright assignment wasn't
very popular, despite that being the solution that the FSF have chosen
for their software.

> (As discussed earlier, even if the USA declines to recognize any copyright
> interest in OSM data, there are other jurisdictions, and few US companies
> would want to use data they had to keep strictly within the USA's borders
> or risk a lawsuit.  I just don't believe it would happen.)

if you're suing an individual then you pretty much have to sue in the
jurisdiction where that individual lives. large companies are easier,
because they operate in several jurisdictions. i agree it's unlikely
to happen, but it's better to have a more defensible legal position in
case it does.

>>i think we're agreed that all licenses have flaws. the sticking point
>>seems to be that i'm of the opinion that CC's flaws are so great that
>>the hassle of moving to a better license is the lesser evil. you
>>appear to be of the opinion that the hassle is greater than any
>>potential benefits. is that an accurate statement?
>
> That is fair; I might even go so far to say that with 50k contributors,
> a licence change is 'totally unworkable' and 'not an option', to borrow some
> of the phrases used earlier.  However I would like to be pleasantly
> surprised about this.

yep. i'd say that a license change is difficult, but that the
alternative is worse; continuing with a license which can be described
using those same phrases ;-)

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On 10/28/09, Ed Avis  wrote:
> Matt Amos  writes:
>
>>let's assume some data are taken and modified and used to generate
>>tiles. the ODbL would require that the modified data are made
>>available, regardless of the license of the tiles. if the data were
>>effectively-PD then there would be no requirement to make the modified
>>data available (although i guess it would be allowable to trace the
>>tiles, subject to the ToS of the site). likewise, CC BY-SA requires
>>that the tiles are CC BY-SA, but requires nothing regarding the
>>redistribution of the data.
>
> You're right.  In a way this is like the source code requirement of
> copyleft licences for computer software.  So it's one case where
> the ODBL gives a stronger share-alike than CC-BY-SA.  (I would check,
> however, that this isn't going to slow the uptake of OSM by sites which
> want to draw their own maps showing houses for sale, etc.  They would
> not be happy having to publish that additional data because it could
> be considered a Derived Database under the ODBL.)

we had a long thread on this a couple of weeks ago (ODbL "virality"
questions) from which i think the consensus was that linking OSM data
with data from independent sources creates a collective database,
rather than a single derivative database. this is permissive enough to
allow 3rd parties to use OSM data in their sites whilst still
protecting the OSM data. in this respect it's like the LGPL more than
the GPL.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>let's assume some data are taken and modified and used to generate
>tiles. the ODbL would require that the modified data are made
>available, regardless of the license of the tiles. if the data were
>effectively-PD then there would be no requirement to make the modified
>data available (although i guess it would be allowable to trace the
>tiles, subject to the ToS of the site). likewise, CC BY-SA requires
>that the tiles are CC BY-SA, but requires nothing regarding the
>redistribution of the data.

You're right.  In a way this is like the source code requirement of
copyleft licences for computer software.  So it's one case where
the ODBL gives a stronger share-alike than CC-BY-SA.  (I would check,
however, that this isn't going to slow the uptake of OSM by sites which
want to draw their own maps showing houses for sale, etc.  They would
not be happy having to publish that additional data because it could
be considered a Derived Database under the ODBL.)

-- 
Ed Avis 


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 5:16 PM, Ed Avis  wrote:
> Essentially, in any place where map data can be publicly seen (e.g. on a
> website) but yet not freely copied (because of copyright or database rights),
> the share-alike licence needs to neutralize those rights, to make sure they
> are passed on to everyone who gets the data.
>
> In places where map data is freely copyable anyway, no share-alike is needed.

that's not quite true. share-alike does more than neutralise those
rights - it turns them around to ensure the perpetual freedom of the
data. in places where map data is freely copyable it's still necessary
to have some provision for data availability.

let's assume some data are taken and modified and used to generate
tiles. the ODbL would require that the modified data are made
available, regardless of the license of the tiles. if the data were
effectively-PD then there would be no requirement to make the modified
data available (although i guess it would be allowable to trace the
tiles, subject to the ToS of the site). likewise, CC BY-SA requires
that the tiles are CC BY-SA, but requires nothing regarding the
redistribution of the data.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>these sites are in non-compliance with the license
>http://wiki.openstreetmap.org/wiki/Lacking_proper_attribution

Would switching to ODBL (or any licence) solve this particular problem?

>in any case, it's not useful to talk about people "stealing" the data
>- anyone can take a copy of the data without depriving us of the
>original copy. there are people who aren't in full compliance with the
>license, but in all of these cases i'm pretty sure it's an oversight
>more than it's deliberate.

Yes.

>as a thought experiment, what would happen if i took the latest planet
>and put it up on my server (let's assume that both i and my server are
>in the US) with a PD license?

Personally, I would say nothing; wait for someone to start distributing it
under non-free terms and then contact them.  If they made an honest mistake
thinking the data really was in the public domain, they will stop; if not,
it is just the same situation as someone taking the planet file and using
it directly for some non-free distribution.

So what then?  One of the copyright holders would have to sue.  To have
grounds for copyright infringement he or she would need to show some
'spark' of creativity in the mapping work (at least according to
).
The lively discussion on mailing lists and wikis of how to tag things,
and the commonplace addition of 'logical' elements (such as intersection nodes)
which do not exist in the real world, looks to me like prima facie evidence
of such a 'spark' or 'minimal degree' of creativity.

Even if the case is not cut and dried, there is certainly enough here to
keep the lawyers busy for a while.  Which, IMHO, is a strong enough deterrent
for anyone thinking of misusing the data.  Consider how much time and money
the SCO - Linux case has taken up so far, on a far flimsier basis.

One thing which weakens the case is that there is not a single copyright
holder.  Certainly copyright assignment to a single entity such as the
OSMF would make it easier to sue.

(As discussed earlier, even if the USA declines to recognize any copyright
interest in OSM data, there are other jurisdictions, and few US companies
would want to use data they had to keep strictly within the USA's borders
or risk a lawsuit.  I just don't believe it would happen.)

>i think we're agreed that all licenses have flaws. the sticking point
>seems to be that i'm of the opinion that CC's flaws are so great that
>the hassle of moving to a better license is the lesser evil. you
>appear to be of the opinion that the hassle is greater than any
>potential benefits. is that an accurate statement?

That is fair; I might even go so far to say that with 50k contributors,
a licence change is 'totally unworkable' and 'not an option', to borrow some
of the phrases used earlier.  However I would like to be pleasantly surprised
about this.

I'm also not a big fan of the ODBL, particularly the contract-law provisions,
but it seems I'm very much in the minority on this.

-- 
Ed Avis 


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>>In my ideal ponies world the database itself would be CC-compatible, so
>>people could generate excerpts ('list of all pubs in Swindon') and include
>>that in CC works.
>
>would the list of all pubs in Swindon be a database, or a produced
>work? if it's included, formatted as a table perhaps, in a web page it
>might be more appropriate to consider it a produced work. although, if
>alphabetically ordered, it might meet the definition of a database...

I'm not sure; the reason why it's good to allow the database itself to
be CC-distributed is to remove the uncertainty in these situations; if
you are distributing the result under CC-BY-SA, then it's permitted.
The distinction between database and produced work in the ODBL is interesting
but I don't know how much legal certainty can be placed on its interpretation.
(That would be more a question for those people-who-would-like-to-use-OSM-
but-are-afraid-of-CC-BY-SA.)

>>That is good.  To return to ponies for a moment, my licence would also
>>be quite clear that 'You do not have to accept this licence, since you
>>have not signed it.'  So if there is no underlying legal reason why you
>>can't distribute the data, you are not required to accept any contract.
>
>that would basically mean the license would be equivalent to PD/CC0 in
>the US (where there are no database rights or copyrights on factual
>data), wouldn't it?

Assuming for the moment that OSM is purely factual and not creative,
nor has any element of judgement in how to tag facts about the world,
then yes.  It would be freely distributable.  I consider it a matter for
the US Congress and courts to decide what intellectual property rights
should be created for map data, and if their answer is 'none', then
OSM should fully support that enlightened policy.

>which would mean the share-alike parts only apply in the EU?

Essentially, in any place where map data can be publicly seen (e.g. on a
website) but yet not freely copied (because of copyright or database rights),
the share-alike licence needs to neutralize those rights, to make sure they
are passed on to everyone who gets the data.

In places where map data is freely copyable anyway, no share-alike is needed.

If there are in-between situations where other laws could be used to distribute
the data under non-free terms, for example by trying to make everyone who
gets it agree to some restrictive contract, we need to assess how serious
those are in practice.  (Trade secrets, mentioned as one possibility, don't
really cause a problem because they only work as long as the information
is kept secret.)

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 3:24 PM, Ed Avis  wrote:
> Matt Amos  writes:
>
let's say, for a moment, that CC BY-SA definitely doesn't work and
isn't an option. what would you do? if you'd move to a new license,
which license?
>
>>>I would prefer one which is CC-compatible,
>
>>which bits need to be CC-compatible? any "produced work", i.e: tiles,
>>can be released under CC BY-SA with the ODbL, allowing maps to be
>>included in any CC-licensed work or site. does the database itself
>>need to be CC-compatible?
>
> In my ideal ponies world the database itself would be CC-compatible, so
> people could generate excerpts ('list of all pubs in Swindon') and include
> that in CC works.

would the list of all pubs in Swindon be a database, or a produced
work? if it's included, formatted as a table perhaps, in a web page it
might be more appropriate to consider it a produced work. although, if
alphabetically ordered, it might meet the definition of a database...

for reference, the definition of a database in ODbL is:

"A collection of material (the Contents) arranged in a systematic or
methodical way and individually accessible by electronic or other
means offered under the terms of this License."

> That is good.  To return to ponies for a moment, my licence would also
> be quite clear that 'You do not have to accept this licence, since you
> have not signed it.'  So if there is no underlying legal reason why you
> can't distribute the data, you are not required to accept any contract.

that would basically mean the license would be equivalent to PD/CC0 in
the US (where there are no database rights or copyrights on factual
data), wouldn't it? which would mean the share-alike parts only apply
in the EU?

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 3:14 PM, Ed Avis  wrote:
> Tom Hughes  writes:
>
>>>But strong claims require strong evidence.  To claim that CC-BY-SA is
>>>'dreadful' requires, IMHO, evidence of real rather than theoretical cases
>>>where it's holding back the goal of free map data.  You might tell me that
>>>the fence around my field is completely ineffective and I should upgrade to
>>>an electric fence, but I might ask on what particular occasion my livestock
>>>have managed to escape.  If they haven't ever done so, perhaps the fence is
>>>working after all.
>>
>>How do you we propose we get this real evidence? Go our and beg somebody
>>to steal our data so we can sue them and see if CC works?
>
> If nobody has stolen the data, then CC does 'work'.  As you say, the aim is 
> not
> to entrap people into violating the licence so the project can then sue them,
> but rather to deter them enough that they won't take the chance.  It seems to
> be accomplishing that aim.

these sites are in non-compliance with the license
http://wiki.openstreetmap.org/wiki/Lacking_proper_attribution

in any case, it's not useful to talk about people "stealing" the data
- anyone can take a copy of the data without depriving us of the
original copy. there are people who aren't in full compliance with the
license, but in all of these cases i'm pretty sure it's an oversight
more than it's deliberate.

as a thought experiment, what would happen if i took the latest planet
and put it up on my server (let's assume that both i and my server are
in the US) with a PD license?

> So while accepting that CC has its flaws, I cannot agree that it is 
> 'dreadful',
> 'useless' or 'completely ineffective'.

i think we're agreed that all licenses have flaws. the sticking point
seems to be that i'm of the opinion that CC's flaws are so great that
the hassle of moving to a better license is the lesser evil. you
appear to be of the opinion that the hassle is greater than any
potential benefits. is that an accurate statement?

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>>>let's say, for a moment, that CC BY-SA definitely doesn't work and
>>>isn't an option. what would you do? if you'd move to a new license,
>>>which license?

>>I would prefer one which is CC-compatible,

>which bits need to be CC-compatible? any "produced work", i.e: tiles,
>can be released under CC BY-SA with the ODbL, allowing maps to be
>included in any CC-licensed work or site. does the database itself
>need to be CC-compatible?

In my ideal ponies world the database itself would be CC-compatible, so
people could generate excerpts ('list of all pubs in Swindon') and include
that in CC works.

>>In a country where neither copyright nor database right
>>exists for map data, good luck to them - obviously they've realized the
>>value of free map data, which is what OSM has been promoting all along.
>>I would not choose a licence which purports to make a contract, or which
>>would require click-through agreement before downloading planet files.
>
>actually, there's no reason for a click-through to download data.
>we've discussed this with lawyers and, although it further reduces the
>enforceability of the license, we don't want to put barriers in the
>way of people using the data.

That is good.  To return to ponies for a moment, my licence would also
be quite clear that 'You do not have to accept this licence, since you
have not signed it.'  So if there is no underlying legal reason why you
can't distribute the data, you are not required to accept any contract.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Frederik Ramm  writes:

>>In general, the ideal licence would not need to be fully watertight in
>>all jurisdictions, but only strong enough to provide a good deterrent
>>in practice for most individuals and companies.
>
>What would you want to deter them from?

I meant to say 'deterrent against redistributing the data under non-free,
non-share-alike terms'.

That is not the goal in itself, of course, but only a way to increase the
general availability of free map data.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Tom Hughes  writes:

>>But strong claims require strong evidence.  To claim that CC-BY-SA is
>>'dreadful' requires, IMHO, evidence of real rather than theoretical cases
>>where it's holding back the goal of free map data.  You might tell me that
>>the fence around my field is completely ineffective and I should upgrade to
>>an electric fence, but I might ask on what particular occasion my livestock
>>have managed to escape.  If they haven't ever done so, perhaps the fence is
>>working after all.
>
>How do you we propose we get this real evidence? Go our and beg somebody 
>to steal our data so we can sue them and see if CC works?

If nobody has stolen the data, then CC does 'work'.  As you say, the aim is not
to entrap people into violating the licence so the project can then sue them,
but rather to deter them enough that they won't take the chance.  It seems to
be accomplishing that aim.

So while accepting that CC has its flaws, I cannot agree that it is 'dreadful',
'useless' or 'completely ineffective'.

-- 
Ed Avis 


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Hi,

Ed Avis wrote:
> In general, the ideal licence would not need to be fully watertight in
> all jurisdictions, but only strong enough to provide a good deterrent
> in practice for most individuals and companies.

What would you want to deter them from?

Bye
Frederik


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 2:54 PM, Ed Avis  wrote:
> Matt Amos  writes:
>>we at the LWG have been working very hard to produce the
>>license that we think the majority of OSM contributors want. a large
>>amount of previous discussion on this and the talk MLs has suggested
>>that share-alike is a much-requested feature*, so we've been working
>>to that goal as best we can. your suggestion that we're
>>overenthusiastic amateurs, sidetracking the project is deeply
>>insulting.
>
> Sorry.  I would like to withdraw that remark.  It is clear that everyone
> working on licence issues has the best interests of the project at heart.

thank you. we all want a license which is clear, elegant,
understandable and bulletproof. of course, this isn't possible, but we
want to get as close as we can to that ideal.

>>let's say, for a moment, that CC BY-SA definitely doesn't work and
>>isn't an option. what would you do? if you'd move to a new license,
>>which license?
>
> Assuming, then, that a licence change is required (along with 'deleting'
> data from people who don't agree, etc).
>
> I would prefer one which is CC-compatible, so public domain would work,
> or some permissive licence such as CC0.

which bits need to be CC-compatible? any "produced work", i.e: tiles,
can be released under CC BY-SA with the ODbL, allowing maps to be
included in any CC-licensed work or site. does the database itself
need to be CC-compatible?

> However, if it is not possible to have both CC-compatible and share-alike
> properties at the same time, which is what you are suggesting, and if
> share-alike is considered the more important of the two, then I would
> choose a licence which tries to enforce share-alike through copyright and
> database right.

the ODbL does this.

> In a country where neither copyright nor database right
> exists for map data, good luck to them - obviously they've realized the
> value of free map data, which is what OSM has been promoting all along.
> I would not choose a licence which purports to make a contract, or which
> would require click-through agreement before downloading planet files.

actually, there's no reason for a click-through to download data.
we've discussed this with lawyers and, although it further reduces the
enforceability of the license, we don't want to put barriers in the
way of people using the data.

the current suggestion is to put the license as a link in the header
of the file and display the license prominently anywhere that data can
be downloaded, just as is the case with CC BY-SA. anyone reading the
file, or writing software to manipulate it, would have to be aware of
the existence of this link (and of the format of the file) and
therefore be aware of the license and their obligations with respect
to it. i totally agree it's weaker than a click-through, but it's more
practical and better than not having anything.

> In general, the ideal licence would not need to be fully watertight in
> all jurisdictions, but only strong enough to provide a good deterrent
> in practice for most individuals and companies.

indeed. but until there's a near-global consensus on database rights
(as the Berne convention does for copyrights) we don't have that
option.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Tom Hughes]

On 28/10/09 14:40, Ed Avis wrote:

> But strong claims require strong evidence.  To claim that CC-BY-SA is
> 'dreadful' requires, IMHO, evidence of real rather than theoretical cases
> where it's holding back the goal of free map data.  You might tell me that
> the fence around my field is completely ineffective and I should upgrade to
> an electric fence, but I might ask on what particular occasion my livestock
> have managed to escape.  If they haven't ever done so, perhaps the fence is
> working after all.

How do you we propose we get this real evidence? Go our and beg somebody 
to steal our data so we can sue them and see if CC works?

Tom

-- 
Tom Hughes (t...@compton.nu)
http://www.compton.nu/

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Andy Allan]

On Wed, Oct 28, 2009 at 2:40 PM, Ed Avis  wrote:

> I'd be a lot more persuaded if there were evidence of a real, occurring
> problem rather than a theoretical one.

[snip]

Or in other words, you still believe the the CC-BY-SA license is fine,
all the re-licensing stuff isn't worth it, and you don't see why
anything needs changing. The only thing that you say might change your
mind is if you are shown more information about lawyer-company
scenarios which are simply hypothetical and unknowable, which of
course I can't help you with.

Fine. Like I said in my last email, I don't think there's anything
left I can say.

Cheers,
Andy

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>there has been some FUD about these "deletions" of data. let me say it
>here: no data will be deleted. if the re-licensing goes ahead then all
>of the data that everyone has contributed would be made available
>through dumps.

Right.  I think everyone understands that, but for an OSM contributor
the choice is still either agree, or see your edits disappear from the
map and from the database.  Of course it has to be that way.  I have noticed
that some people see it (whether intended or not) as a kind of threat:
sign up or say goodbye to your edits.  This would be a disadvantage of
any licence change, to ODBL or anything else.

>we at the LWG have been working very hard to produce the
>license that we think the majority of OSM contributors want. a large
>amount of previous discussion on this and the talk MLs has suggested
>that share-alike is a much-requested feature*, so we've been working
>to that goal as best we can. your suggestion that we're
>overenthusiastic amateurs, sidetracking the project is deeply
>insulting.

Sorry.  I would like to withdraw that remark.  It is clear that everyone
working on licence issues has the best interests of the project at heart.

>let's say, for a moment, that CC BY-SA definitely doesn't work and
>isn't an option. what would you do? if you'd move to a new license,
>which license?

Assuming, then, that a licence change is required (along with 'deleting'
data from people who don't agree, etc).

I would prefer one which is CC-compatible, so public domain would work,
or some permissive licence such as CC0.

However, if it is not possible to have both CC-compatible and share-alike
properties at the same time, which is what you are suggesting, and if
share-alike is considered the more important of the two, then I would
choose a licence which tries to enforce share-alike through copyright and
database right.  In a country where neither copyright nor database right
exists for map data, good luck to them - obviously they've realized the
value of free map data, which is what OSM has been promoting all along.
I would not choose a licence which purports to make a contract, or which
would require click-through agreement before downloading planet files.

In general, the ideal licence would not need to be fully watertight in
all jurisdictions, but only strong enough to provide a good deterrent
in practice for most individuals and companies.

-- 
Ed Avis 


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Andy Allan]

On Wed, Oct 28, 2009 at 2:28 PM, Frederik Ramm  wrote:

> I'm not saying that Creative Commons are always right, but trying to
> make it sound as if they were endorsing OdBL is a bit heavy.

I'm not sure where I mentioned the OdBL? I'm just trying to make the
point to Ed that his desire to continue CC-BY-SA licensing is simply
not a workable solution. This whole conversation would be much more
productive if everyone could accept that the status quo isn't a valid
answer, regardless of how much life would be simpler if it was.

Cheers,
Andy

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 2:28 PM, Frederik Ramm  wrote:
> Andy Allan wrote:
>> That is, Creative Commons have advised
>> us, and everyone else, to not use CCBYSA for data. It doesn't come
>> more plain than that.
>
> I'm not saying that Creative Commons are always right, but trying to
> make it sound as if they were endorsing OdBL is a bit heavy.

i don't think andy suggested anywhere that CC were endorsing ODbL,
just that they are advising against CC BY-SA for factual data.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Andy Allan  writes:

>> Even if you agree that CC-BY-SA is less than ideal,
>
>It's not "less than ideal". It's dreadful. The OSMF license team have
>created a document explaining why. We've had lawyers confirming that
>it probably doesn't work. Even the people who created it say that it
>should not be used for data. That is, Creative Commons have advised
>us, and everyone else, to not use CCBYSA for data.

This is a little bit disingenuous; they have also advised you, and
everyone else, not to use ODBL either.

>But that hasn't stopped you from having your own opinion, which is
>that you aren't swayed by all the evidence to the contrary, and
>whenever you ask for such evidence and it's provided, you seem to
>shrug it off anyway.

I'd be a lot more persuaded if there were evidence of a real, occurring
problem rather than a theoretical one.  The OSM data is by now rich and
detailed, and has been for several years.  Yet to my knowledge, not a
single map vendor, data vendor, search engine, or anyone else has successfully
copied all or part of OSM, flouting CC-BY-SA.  They are quite happy to use
public domain data, so if CC-BY-SA is really as ineffective as is claimed,
why are they not using OSM data too?  Could it be that their lawyers are
telling them something a bit different from what is asserted on this list?
Or, even, that legal opinions and the threat of court action are not the
be all and end all of how people will behave, and a licence like CC-BY-SA
might be an effective way to make people share-alike even if it's not
bulletproof?

I accept that the legal situation with OSM and CC-BY-SA is not as clear-cut
as, say, a published novel or a computer program and the GPL.  I understand
that when lawyers are asked for an opinion, they suck their teeth and point
out flaws and question marks over enforceability, as they always do.

But strong claims require strong evidence.  To claim that CC-BY-SA is
'dreadful' requires, IMHO, evidence of real rather than theoretical cases
where it's holding back the goal of free map data.  You might tell me that
the fence around my field is completely ineffective and I should upgrade to
an electric fence, but I might ask on what particular occasion my livestock
have managed to escape.  If they haven't ever done so, perhaps the fence is
working after all.

It was mentioned that some potential users of OSM data have been put off
by CC-BY-SA after their lawyers inspected it.  I accept this as a real,
existing problem with the current licence and one that might motivate a
licence change.  It would be good to know more details, and whether these
same lawyers who were unhappy using data under CC-BY-SA would be content
to use it under ODBL.

>>After all if we go through one big data deletion
>>and relicensing, what's to stop it happening again later?
>
>Have you read the proposed contributor terms?

You're right, the new terms would allow OSMF to relicense the data.
I had forgotten that point.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Hi,

Andy Allan wrote:
> That is, Creative Commons have advised
> us, and everyone else, to not use CCBYSA for data. It doesn't come
> more plain than that.

I would very much appreciate if *everyone* who invokes Creative Commons 
saying that CC-BY-SA is not suitable for data would also add the second 
bit, namely that they suggest using CC0, their PD variant, for data.

When Mike Collinson said in hist SOTM speech that Creative Commons do 
not recommend CC-BY-SA for data, I half-jokingly called from the 
audience: "What *do* they recommend?" - but he left that bit out. I 
didn't think much of this but in the last few days I have read many 
times over that Creative Commons suggest not to use CC-BY-SA for data 
(which is true), but nobody ever bothers to say that they actually spoke 
out against ODbL as well because they believe data should be CC0, that 
is basically PD.

I'm not saying that Creative Commons are always right, but trying to 
make it sound as if they were endorsing OdBL is a bit heavy.

Bye
Frederik


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 1:47 PM, Ed Avis  wrote:
> Remember, though, that there are huge transaction costs associated with any
> licence switch.  Even if you agree that CC-BY-SA is less than ideal, it might
> be better than deleting big chunks out of the database and alienating parts
> of the contributor base.  It might also undermine expectations of the
> project's stability.  After all if we go through one big data deletion
> and relicensing, what's to stop it happening again later?

CC BY-SA is certainly less than ideal - it doesn't protect those
copyleft principles in large parts of the world.

there has been some FUD about these "deletions" of data. let me say it
here: no data will be deleted. if the re-licensing goes ahead then all
of the data that everyone has contributed would be made available
through dumps. we could not retrospectively re-license old planet
files and dumps, so these would continue to be available. the
CC-licensed data would not be deleted. but, of course, it couldn't
appear in the ODbL-licensed dumps.

>>PD is easy to understand, provides maximum usefulness
>>of our data in all possible circumstances, and requires absolutely zero
>>man-hours of work tracking down "violators"; creates no community
>>friction because over-eager license vigilantes have to be reined in;
>>poses no risk of seducing OSMF to spend lots of money on lawyers; allows
>>us to concentrate on or core competencies.
>
> Agreed.  There is certainly a risk of the project being captured by lawyers
> or, worse, overenthusiastic amateurs, and getting sidetracked into enforcing
> rights rather than forwarding its goal of free map data.  That is one reason
> why I think a simpler, less armed-to-the-teeth licence may in the end be
> a good thing.

agreed. we at the LWG have been working very hard to produce the
license that we think the majority of OSM contributors want. a large
amount of previous discussion on this and the talk MLs has suggested
that share-alike is a much-requested feature*, so we've been working
to that goal as best we can. your suggestion that we're
overenthusiastic amateurs, sidetracking the project is deeply
insulting.

let's say, for a moment, that CC BY-SA definitely doesn't work and
isn't an option. what would you do? if you'd move to a new license,
which license?

cheers,

matt

*: it may be that it's only requested by the vociferous minority, but
until someone does a rigorous poll of a significant portion of the OSM
contributors, it's the only evidence we have.

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Andy Allan]

On Wed, Oct 28, 2009 at 1:47 PM, Ed Avis  wrote:
>  Even if you agree that CC-BY-SA is less than ideal,

It's not "less than ideal". It's dreadful. The OSMF license team have
created a document explaining why. We've had lawyers confirming that
it probably doesn't work. Even the people who created it say that it
should not be used for data. That is, Creative Commons have advised
us, and everyone else, to not use CCBYSA for data. It doesn't come
more plain than that.

But that hasn't stopped you from having your own opinion, which is
that you aren't swayed by all the evidence to the contrary, and
whenever you ask for such evidence and it's provided, you seem to
shrug it off anyway. I'm not sure if there's any avenue left that we
can help you with? If it's your settled decision that CCBYSA is
actually OK, even after all this, then I can't think of anything that
will help inform your decision more than what's been said already.

>  After all if we go through one big data deletion
> and relicensing, what's to stop it happening again later?

Have you read the proposed contributor terms? I'm not sure whether
your question is just rhetorical speculation, or whether you have
suggested changes to the proposed contributor terms that might help
solve whichever problem it is you think that there might be in the
future.

Cheers,
Andy

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 1:19 PM, Ed Avis  wrote:
> Matt Amos  writes:
>>Dr Evil doesn't need an unlimited legal budget - he just needs to live
>>in a country where non-creative data isn't copyrightable.
>
> ...and in a country where it is crystal clear that the OSM data is
> 'non-creative'.  That point is far from obvious to me.

it's crystal clear to me: OSM data represents what exists on the
ground - it represents facts. the US definition of creativity is
(paraphrasing) that two independent people doing the same thing come
up with different outputs, each expressing individual creativity. i'd
argue that if two OSM mappers mapped the same features over the same
area then the output wouldn't differ significantly (i.e: by more than
the tolerance of the GPS/aerial imagery/etc...). therefore OSM data is
unlikely to be considered creative.

> Even in the USA there is certainly enough meat in OSM for a straightforward
> copyright infringement case, IMHO.  If it were a collection of pure facts
> with no expressive content and no scope for imagination or judgement then
> I would agree that trying to enforce share-alike with CC-BY-SA is problematic.

i don't agree.

>>if we just wanted to give maps away for free then we'd PD it. if we
>>want stronger copyleft than that, then we have to start thinking about
>>enforcing those copylefts.
>
> Yes.  But if enforcement comes at a cost, you must trade off how much
> legal weaponry you want against the disadvantages of a more complex or
> (in some ways) more restrictive licence.  I lock the door of my house,
> but it is not a worthwhile tradeoff for me to install barbed wire fencing,
> searchlights or a moat.  Even though there is a theoretical possibility
> someone could break in, the deterrent of a locked door is sufficient in
> practice.  Even though the fact that something hasn't happened in the past
> does not guarantee it won't happen, I can use the past few years of
> experience as some justification for saying the current deterrent is enough.

from discussions with lawyers and reading background case law, i'd say
that CC BY-SA for OSM data is like leaving your front door wide open
and a sign saying "there may or may not be a vicious dog, no-one has
found out yet".

> The question to ask is not 'is our legal framework absolutely watertight
> in smacking down anyone, anywhere in the world, who violates the licence'
> but rather 'is it a strong enough deterrent in practice to make sure that
> share-alike principles are followed and promote free map data'?

no legal framework is ever absolutely watertight. ODbL isn't
watertight. CC BY-SA is a sieve.

if we carry on licensing CC BY-SA we may get to the state where CC
BY-SA is challenged. if the challenge is in the US, i think there's a
good chance of OSMF losing,
>>>
>>>Would that be such a disaster?  If such a precedent were set, then any
>>>factual data derived from OSM would also be in the public domain in that
>>>country,
>
>>PD isn't viral - any factual data derived from OSM might well be
>>protected by other IP rights (e.g: database rights) reserved by the
>>deriver.
>
> In the particular case of the US, there is no database right.

fine, then privacy or publicity rights, trademark rights, patent
rights, or any other IP. the rights aren't important - what's
important is that a failure of CC BY-SA is a failure of share-alike.

>>additionally, there's the difference between what CC BY-SA requires
>>you to share and what ODbL requires you to share. sure, CC BY-SA might
>>keep the tiles in the "free domain", but it doesn't keep the data in
>>the free domain.
>
> This depends on what exclusionary rights OSMF and the contributors have
> over the data, which is what we are discussing.
>
> If the data is subject to copyright then yes, CC-BY-SA does keep it free.
> If copyright does not apply and there is no database right to consider,
> then CC-BY-SA does not work, but I doubt that any other licence would.
> You can try making a contract or EULA as the ODBL does, but that is flaky;
> if the data is truly in the public domain, then courts are unlikely to
> accept that adding any amount of legal boilerplate will change that.

flaky is better than nothing. CC BY-SA doesn't work and database
rights aren't widespread. that doesn't leave much to work with.

> If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness
> and enforceability, you should do the same for ODBL.  I don't think that
> is always the case here.

yes, let's do the analysis:

CC BY-SA in NL, BE: databases are copyrightable, making the ported
license strong. the non-ported less so, but the fundamental
protections are still there.

ODbL in NL, BE: EU database directive makes the license strong.

CC BY-SA in wider EU: copyright provisions vary - some countries would
follow the creativity model, others would respect the "sweat of the
brow" and give some protection.

ODbL in wider EU: database directive makes the license strong.

CC B

Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Frederik Ramm  writes:

>Indeed, the 
>very first "official" statements from OSMF already contained what is 
>still the official chicken wording today: "[A PD license is] unlikely to 
>be adopted by all.", or "unlikely to be palatable to many OSM contributors".

>Which is strange, given that it is near certain that ODbL will "not be 
>adpoted by all" and "not be palatable to many OSM contributors" (simply 
>because there are so many to start with). With the ODbL this does not 
>seem too important - if push comes to shove we're willing to delete and 
>re-create data which is not re-licensed by the respective contributors; 
>but for the PD cause, the fact that there were hardliners unwilling to 
>agree was used as the reason for not pursuing this.

Yes, there does seem to be a presumption in favour of relicensing, with
the the decision (seen by some as a threat) to delete any data from those
who don't comply; but there is not the same presumption in favour of
changing to PD.

I have heard it repeated a few times that share-alike is 'the settled
consensus' among OSM contributors.  But of course, those who favour
PD will also be happy for their work to be distributed under share-alike
terms, so a large contribution base under CC-BY-SA or indeed any licence
does not mean that all of those people wouldn't have contributed anyway.

I think it is equally arguable, based on the contributions to OSM so far,
that Creative Commons is the 'settled consensus'.  Without asking everyone,
you can't tell whether they like share-alike in general, or particularly
want to use CC-BY-SA for compatibility with the larger ecosystem of CC content.

>We are now at a point where we have a clear alternative; go ODbL, or go 
>PD. (Or stay with CC-BY-SA but I really think that sticking to the 
>CC-BY-SA is more an expression of wishful thinking that anything else.)

Noted.

Remember, though, that there are huge transaction costs associated with any
licence switch.  Even if you agree that CC-BY-SA is less than ideal, it might
be better than deleting big chunks out of the database and alienating parts
of the contributor base.  It might also undermine expectations of the
project's stability.  After all if we go through one big data deletion
and relicensing, what's to stop it happening again later?

>PD is easy to understand, provides maximum usefulness 
>of our data in all possible circumstances, and requires absolutely zero 
>man-hours of work tracking down "violators"; creates no community 
>friction because over-eager license vigilantes have to be reined in; 
>poses no risk of seducing OSMF to spend lots of money on lawyers; allows 
>us to concentrate on or core competencies.

Agreed.  There is certainly a risk of the project being captured by lawyers
or, worse, overenthusiastic amateurs, and getting sidetracked into enforcing
rights rather than forwarding its goal of free map data.  That is one reason
why I think a simpler, less armed-to-the-teeth licence may in the end be
a good thing.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>>If someone is taking OSM data and misusing it secretly, then they would
>>be able to continue doing that whatever licence was chosen.  So we only
>>need to consider cases where a violation becomes publicly known.
>
>my point was more like "there's no evidence yet". just because it
>hasn't happened doesn't mean it isn't going to happen.

OK.

>Dr Evil doesn't need an unlimited legal budget - he just needs to live
>in a country where non-creative data isn't copyrightable.

...and in a country where it is crystal clear that the OSM data is
'non-creative'.  That point is far from obvious to me.

Even in the USA there is certainly enough meat in OSM for a straightforward
copyright infringement case, IMHO.  If it were a collection of pure facts
with no expressive content and no scope for imagination or judgement then
I would agree that trying to enforce share-alike with CC-BY-SA is problematic.

>if we just wanted to give maps away for free then we'd PD it. if we
>want stronger copyleft than that, then we have to start thinking about
>enforcing those copylefts.

Yes.  But if enforcement comes at a cost, you must trade off how much
legal weaponry you want against the disadvantages of a more complex or
(in some ways) more restrictive licence.  I lock the door of my house,
but it is not a worthwhile tradeoff for me to install barbed wire fencing,
searchlights or a moat.  Even though there is a theoretical possibility
someone could break in, the deterrent of a locked door is sufficient in
practice.  Even though the fact that something hasn't happened in the past
does not guarantee it won't happen, I can use the past few years of
experience as some justification for saying the current deterrent is enough.

The question to ask is not 'is our legal framework absolutely watertight
in smacking down anyone, anywhere in the world, who violates the licence'
but rather 'is it a strong enough deterrent in practice to make sure that
share-alike principles are followed and promote free map data'?

>>>if we carry on licensing CC BY-SA we may get to the state where CC
>>>BY-SA is challenged. if the challenge is in the US, i think there's a
>>>good chance of OSMF losing,
>>
>>Would that be such a disaster?  If such a precedent were set, then any
>>factual data derived from OSM would also be in the public domain in that
>>country,

>PD isn't viral - any factual data derived from OSM might well be
>protected by other IP rights (e.g: database rights) reserved by the
>deriver.

In the particular case of the US, there is no database right.

>additionally, there's the difference between what CC BY-SA requires
>you to share and what ODbL requires you to share. sure, CC BY-SA might
>keep the tiles in the "free domain", but it doesn't keep the data in
>the free domain.

This depends on what exclusionary rights OSMF and the contributors have
over the data, which is what we are discussing.

If the data is subject to copyright then yes, CC-BY-SA does keep it free.
If copyright does not apply and there is no database right to consider,
then CC-BY-SA does not work, but I doubt that any other licence would.
You can try making a contract or EULA as the ODBL does, but that is flaky;
if the data is truly in the public domain, then courts are unlikely to
accept that adding any amount of legal boilerplate will change that.

If you take a very sceptical, pessimistic view of CC-BY-SA's effectiveness
and enforceability, you should do the same for ODBL.  I don't think that
is always the case here.

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Hi,

Ed Avis wrote:
>> if we carry on licensing CC BY-SA we may get to the state where CC
>> BY-SA is challenged. if the challenge is in the US, i think there's a
>> good chance of OSMF losing,
> 
> Would that be such a disaster?  If such a precedent were set, then any
> factual data derived from OSM would also be in the public domain in that
> country, and could be shared freely and incorporated into the project,
> giving just the same result as if CC-BY-SA were in force.

No, that would be great.

My personal belief is that OSMF is going over the top with this whole 
share-alike thing. ODbL may be a working license, but the question 
whether we want or need share-alike to achieve our goals is a wholly 
different one - a question where from day one we had a small but vocal 
number of project members saying that share-alike is a must, and OSMF 
never had the balls to question, or even challenge, that. Indeed, the 
very first "official" statements from OSMF already contained what is 
still the official chicken wording today: "[A PD license is] unlikely to 
be adopted by all.", or "unlikely to be palatable to many OSM contributors".

What this has in effect done is given them (the OSM contributors who are 
against public domain) a veto right - without even counting how many of 
them there are.

Which is strange, given that it is near certain that ODbL will "not be 
adpoted by all" and "not be palatable to many OSM contributors" (simply 
because there are so many to start with). With the ODbL this does not 
seem too important - if push comes to shove we're willing to delete and 
re-create data which is not re-licensed by the respective contributors; 
but for the PD cause, the fact that there were hardliners unwilling to 
agree was used as the reason for not pursuing this.

I'm happy that the license working group has done a lot of work to 
present us with the best possible share-alike license for our data. As 
Matt concedes, this license still has weaknesses, some of which may be 
fixable at a later date, and others may just be results of trying to be 
free and enforcing something at the same time.

We are now at a point where we have a clear alternative; go ODbL, or go 
PD. (Or stay with CC-BY-SA but I really think that sticking to the 
CC-BY-SA is more an expression of wishful thinking that anything else.)

PD, of course, has weaknesses too. Still I'm inclined to think that the 
problems and weaknesses incurred by PD will hurt less than those 
incurred by ODbL. PD is easy to understand, provides maximum usefulness 
of our data in all possible circumstances, and requires absolutely zero 
man-hours of work tracking down "violators"; creates no community 
friction because over-eager license vigilantes have to be reined in; 
poses no risk of seducing OSMF to spend lots of money on lawyers; allows 
us to concentrate on or core competencies.

But to get back to your initial sentence; if OSM were proven to be 
copyright-free because it contains only factual data, then any factual 
addition to OSM would probably be copyright-free in that country as 
well, but if we then take that and put it back into OSM, maybe the 
author would sue us in another country (he extracts the data in the US 
where this is free, then transfers it to the UK, then enriches and sells 
it; we take it, upload it, he sues us in the UK - something like that).

It's a mean world out there and if someone wants to create trouble for 
us they will always find a way.

Bye
Frederik

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 12:20 PM, Ed Avis  wrote:
> Matt Amos  writes:
>
>>>I happily support the status quo, where map data is freely available
>>>under CC share-alike terms, and I see no evidence of evil mapmakers copying
>>>it with impunity.
>>
>>absence of evidence isn't evidence of absence, and so forth
>
> If someone is taking OSM data and misusing it secretly, then they would
> be able to continue doing that whatever licence was chosen.  So we only
> need to consider cases where a violation becomes publicly known.

my point was more like "there's no evidence yet". just because it
hasn't happened doesn't mean it isn't going to happen.

>>>Has any lawyer in fact said to you: as things stand, it is quite possible to
>>>copy OSM data in the United States, redistribute it under any restrictive
>>>licence you want,
>
>>of course not - lawyers don't talk like that. lawyers have actually
>>said to me; "CC BY-SA isn't a strong license for factual data. it
>>would be difficult to defend in the US and other jurisdictions where
>>copyright doesn't cover factual data."
>
> While that is a long way from 'yes, you have a straightforward way to sue',
> it is also very different from 'no, it's clear that your licence is
> unenforceable'.  The issue is a shade of grey and the question is just
> what shade is enough.

lawyers only ever talk in shades of grey, probably because there are
no absolutes in the courtroom. i've asked lawyers several times for
absolute answers and they always just say "judges can be
unpredictable" ;-)

>>so, no - no lawyer has ever given me a statement as strongly-worded as
>>"i'd advise my clients to take OSM data and re-license it", presumably
>>because there is some risk that we could sue in NL or BE or something
>>like that.
>
> Indeed.  And isn't that enough deterrent?  Are we really up against some
> Dr Evil figure with an unlimited legal budget to try every possible way
> to make illicit copies of OSM data in some jurisdiction?

Dr Evil doesn't need an unlimited legal budget - he just needs to live
in a country where non-creative data isn't copyrightable. it's then up
to OSMF to bring a case against him in a jurisdiction where he has
assets or can be bound by a court ruling.

rather than limit this to NL and BE, wouldn't it be better if the
license were enforceable in more jurisdictions?

> Isn't the reality that no company would ever consider it worth the legal
> risk to start appropriating OSM's data, even in the USA?

i don't know. i assume most are put off by the risk, but there will be
a few who will chance it. CC BY-SA for non-creative data is much, much
weaker than GPL for source code and yet several companies have been
challenged for violating the GPL.

>>on the other hand, from a defensibility point-of-view, OSMF
>>can't possibly enforce all its rights in dutch and belgian courts -
>>many license violators will have no assets or presence in the EU.
>
> There is something a bit wrong with this argument, IMHO: the OSM
> project does not exist in order to enforce certain rights.  It exists
> to provide free map data to the world, and enforcing share-alike terms
> is a means to that end.  We need to enforce just enough of the project's
> rights to promote the free availability of maps, not strive to close
> down every possible legalistic opening.

if we just wanted to give maps away for free then we'd PD it. if we
want stronger copyleft than that, then we have to start thinking about
enforcing those copylefts.

>>if we carry on licensing CC BY-SA we may get to the state where CC
>>BY-SA is challenged. if the challenge is in the US, i think there's a
>>good chance of OSMF losing,
>
> Would that be such a disaster?  If such a precedent were set, then any
> factual data derived from OSM would also be in the public domain in that
> country, and could be shared freely and incorporated into the project,
> giving just the same result as if CC-BY-SA were in force.

PD isn't viral - any factual data derived from OSM might well be
protected by other IP rights (e.g: database rights) reserved by the
deriver. it would be a problem for those who want to see the data
remain copyleft.

> Indeed one way
> to think about CC-BY-SA (apart from the attribution requirement) is that
> it tries to simulate a situation where all content is in the public domain.

that's basically the same thing as saying CC BY-SA tries to simulate a
situation where CC BY-SA is the only and default license for
everything.

additionally, there's the difference between what CC BY-SA requires
you to share and what ODbL requires you to share. sure, CC BY-SA might
keep the tiles in the "free domain", but it doesn't keep the data in
the free domain. ODbL flips that, allowing cartographers to keep the
"style copyrights" in their own maps, but requiring that the data
remain in the "free domain". this, in my opinion, is a vast
improvement over CC BY-SA.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Frederik Ramm  writes:

>You seem to be saying:
>
>1. there is no proof that CC-BY-SA doesn't work;
>
>2. there is danger that anything based on contract law weakens the 
>protection we have for our data (because breach of contract doesn't give 
>us a strong handle)
>
>3. you accept that CC-BY-SA uncertainties may have turned off some 
>potential users
>
>4. you would happily go along with dual-licensing OSM under CC-BY-SA and 
>   "some other, more permissive" license.

Yes that seems fair.
 
>If so, then would not the "other, more permissive" license you are 
>willing to grant in 4 automatically lead to the weakened protection from 2?

Yes.  If the alternative licence were some kind of contract, then you can
get people claiming that they didn't agree to the contract, or it's
unenforceable, or that they did violate it but caused no monetary harm to
the project so no damages are payable.

However, if the current CC-BY-SA licence is putting off some people from using
OSM data, this might be a worthwhile tradeoff to make.  It might be worth
weakening the legal protection somewhat in order to further the project's
broader goals of making free map data available.

In this particular case, although I'm not convinced that ODBL is more
enforceable than CC-BY-SA, it is still enforceable enough to deter anybody
who doesn't have a gift voucher for ten million dollars of legal services
that they have to spend in the next two years.  If we were having this
discussion the other way round, to suggest dumping ODBL and moving to
Creative Commons, I would probably still argue that the existing licence
is strong enough and the theoretical legal scenarios aren't practical enough
to cause concern.

-- 
Ed Avis 




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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>>I happily support the status quo, where map data is freely available
>>under CC share-alike terms, and I see no evidence of evil mapmakers copying
>>it with impunity.
>
>absence of evidence isn't evidence of absence, and so forth 

If someone is taking OSM data and misusing it secretly, then they would
be able to continue doing that whatever licence was chosen.  So we only
need to consider cases where a violation becomes publicly known.

>>The legal theory sounds reasonable as far as it goes, but there is little
>>evidence that there is any problem in practice.
>
>so it makes sense to move to ODbL - then there's a sound theory as
>well as no problems in practice.

It's an argument in favour of moving.  I don't agree that it outweighs the
costs of moving, or the loss in no longer having map data available under
a Creative Commons, non-EULA licence.

(I did raise the question of whether ODBL is in fact less enforceable, since
it claims to be a contract, which would make injunctions difficult to get.
Apparently this issue has been taken into consideration by the lawyers.)

>>Has any lawyer in fact said to you: as things stand, it is quite possible to
>>copy OSM data in the United States, redistribute it under any restrictive
>>licence you want,

>of course not - lawyers don't talk like that. lawyers have actually
>said to me; "CC BY-SA isn't a strong license for factual data. it
>would be difficult to defend in the US and other jurisdictions where
>copyright doesn't cover factual data."

While that is a long way from 'yes, you have a straightforward way to sue',
it is also very different from 'no, it's clear that your licence is
unenforceable'.  The issue is a shade of grey and the question is just
what shade is enough.

>so, no - no lawyer has ever given me a statement as strongly-worded as
>"i'd advise my clients to take OSM data and re-license it", presumably
>because there is some risk that we could sue in NL or BE or something
>like that.

Indeed.  And isn't that enough deterrent?  Are we really up against some
Dr Evil figure with an unlimited legal budget to try every possible way
to make illicit copies of OSM data in some jurisdiction?

Isn't the reality that no company would ever consider it worth the legal
risk to start appropriating OSM's data, even in the USA?

>on the other hand, from a defensibility point-of-view, OSMF
>can't possibly enforce all its rights in dutch and belgian courts -
>many license violators will have no assets or presence in the EU.

There is something a bit wrong with this argument, IMHO: the OSM
project does not exist in order to enforce certain rights.  It exists
to provide free map data to the world, and enforcing share-alike terms
is a means to that end.  We need to enforce just enough of the project's
rights to promote the free availability of maps, not strive to close
down every possible legalistic opening.

>if we carry on licensing CC BY-SA we may get to the state where CC
>BY-SA is challenged. if the challenge is in the US, i think there's a
>good chance of OSMF losing,

Would that be such a disaster?  If such a precedent were set, then any
factual data derived from OSM would also be in the public domain in that
country, and could be shared freely and incorporated into the project,
giving just the same result as if CC-BY-SA were in force.  Indeed one way
to think about CC-BY-SA (apart from the attribution requirement) is that
it tries to simulate a situation where all content is in the public domain.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Wed, Oct 28, 2009 at 11:20 AM, Ed Avis  wrote:
> Matt Amos  writes:
>
you'd happily support distributing the data under a license which is
not likely to protect it?
>
> I happily support the status quo, where map data is freely available
> under CC share-alike terms, and I see no evidence of evil mapmakers copying
> it with impunity.

absence of evidence isn't evidence of absence, and so forth ;-)

>>>I think he's asking for evidence of "not likely".
>>
>>that can be found in the "why cc by-sa is unsuitable" document. i went
>>into the first point at length, referencing some legal precedents
>>(mostly in the US). i've had several people look over and check the
>>document, including lawyers, so i'm fairly sure that the reasoning
>>isn't wrong.
>
> The legal theory sounds reasonable as far as it goes, but there is little
> evidence that there is any problem in practice.

so it makes sense to move to ODbL - then there's a sound theory as
well as no problems in practice.

> Has any lawyer in fact said to you: as things stand, it is quite possible to
> copy OSM data in the United States, redistribute it under any restrictive
> licence you want, with nothing that the OSM contributors can do about it;
> and I would give this legal advice to my clients.
>
> In my view this is very far from being the case.

of course not - lawyers don't talk like that. lawyers have actually
said to me; "CC BY-SA isn't a strong license for factual data. it
would be difficult to defend in the US and other jurisdictions where
copyright doesn't cover factual data."

from looking at the case law, both RichardF and i have come to the
conclusion that CC BY-SA just doesn't work for OSM, and that ODbL is
better (fsvo better). the science commons people also looked at CC
licenses for non-creative data [1] and came to the conclusion that:

"Many databases, however, contain factual information that may have
taken a great deal of effort to gather, such as the results of a
series of complicated and creative experiments. Nonetheless, that
information is not protected by copyright and cannot be licensed under
the terms of a Creative Commons license."

so, no - no lawyer has ever given me a statement as strongly-worded as
"i'd advise my clients to take OSM data and re-license it", presumably
because there is some risk that we could sue in NL or BE or something
like that. on the other hand, from a defensibility point-of-view, OSMF
can't possibly enforce all its rights in dutch and belgian courts -
many license violators will have no assets or presence in the EU.

if we carry on licensing CC BY-SA we may get to the state where CC
BY-SA is challenged. if the challenge is in the US, i think there's a
good chance of OSMF losing, in which case we would have to scramble to
get a new license in place. the way i see it, there are two options:
1) decide that licensing is more trouble than it's worth and PD the
lot (since that would be more-or-less the effect of losing a challenge
in the US anyway),
2) move to a more defensible license before CC BY-SA is challenged.

cheers,

matt

[1] http://sciencecommons.org/resources/faq/databases/#canicc

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Ed,

I don't quite follow your logic.

You seem to be saying:

1. there is no proof that CC-BY-SA doesn't work;

2. there is danger that anything based on contract law weakens the 
protection we have for our data (because breach of contract doesn't give 
us a strong handle)

3. you accept that CC-BY-SA uncertainties may have turned off some 
potential users

4. you would happily go along with dual-licensing OSM under CC-BY-SA and 
   "some other, more permissive" license.

Is that a correct sum-up?

If so, then would not the "other, more permissive" license you are 
willing to grant in 4 automatically lead to the weakened protection from 2?

"Dual licensing", after all, means that the licensee can choose any of 
the available licenses and not be bound by all the others he or she does 
not choose.

Bye
Frederik


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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Matt Amos  writes:

>>>you'd happily support distributing the data under a license which is
>>>not likely to protect it?

I happily support the status quo, where map data is freely available
under CC share-alike terms, and I see no evidence of evil mapmakers copying
it with impunity.

>>I think he's asking for evidence of "not likely".
>
>that can be found in the "why cc by-sa is unsuitable" document. i went
>into the first point at length, referencing some legal precedents
>(mostly in the US). i've had several people look over and check the
>document, including lawyers, so i'm fairly sure that the reasoning
>isn't wrong.

The legal theory sounds reasonable as far as it goes, but there is little
evidence that there is any problem in practice.

Has any lawyer in fact said to you: as things stand, it is quite possible to
copy OSM data in the United States, redistribute it under any restrictive
licence you want, with nothing that the OSM contributors can do about it;
and I would give this legal advice to my clients.

In my view this is very far from being the case.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Tue, Oct 27, 2009 at 2:11 PM, Frederik Ramm  wrote:
> Hi,
>
> Matt Amos wrote:
>> ODbL does exactly this: it is a copyright and database rights license,
>
> Can you explain this some more. I thought the copyright aspect was
> explicitly not covering the content (a fact that was actually critisised
> by a legal reviewer who found it too clumsy to have an extra license for
> the content).

indeed. the odbl says:

Copyright law varies between jurisdictions, but is likely to cover:
the Database model or schema, which is the structure, arrangement, and
organisation of the Database, and can also include the Database tables
and table indexes; the data entry and output sheets; and the Field
names of Contents stored in the Database.

it is a bit pointless, from an OSM point of view, to try and cover the
contents. we aim for accuracy in our maps, which means that they
should represent what is present in reality. in turn, this means that
the data is largely factual, not creative, and therefore attracts very
little copyright protection in many jurisdictions.

the map of monkey island, however, might be copyrightable. ;-)

>>> Thanks.  Those are indeed problems with the licence.  But only the first
>>> one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
>>> addressed by dual-licensing under both Creative Commons and some other,
>>> more permissive (and acceptable-to-some-lawyers) licence.  I would happily
>>> support such a move.
>>
>> you'd happily support distributing the data under a license which is
>> not likely to protect it?
>
> I think he's asking for evidence of "not likely".

that can be found in the "why cc by-sa is unsuitable" document. i went
into the first point at length, referencing some legal precedents
(mostly in the US). i've had several people look over and check the
document, including lawyers, so i'm fairly sure that the reasoning
isn't wrong. of course, any errors found are completely my fault. :-)

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Hi,

Matt Amos wrote:
> ODbL does exactly this: it is a copyright and database rights license,

Can you explain this some more. I thought the copyright aspect was 
explicitly not covering the content (a fact that was actually critisised 
by a legal reviewer who found it too clumsy to have an extra license for 
the content).

>> Thanks.  Those are indeed problems with the licence.  But only the first
>> one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
>> addressed by dual-licensing under both Creative Commons and some other,
>> more permissive (and acceptable-to-some-lawyers) licence.  I would happily
>> support such a move.
> 
> you'd happily support distributing the data under a license which is
> not likely to protect it?

I think he's asking for evidence of "not likely".

Bye
Frederik

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Tue, Oct 27, 2009 at 1:06 PM, Ed Avis  wrote:
> Matt Amos  writes:
>
> [CC-BY-SA unclear, or not permissive enough?]
>
We know for a fact that a number of people (especially people that have
asked their lawyers for an opinion) have indeed decided not to use our
data for this reason.
>>>
>>>That is certainly a good reason to switch to a simpler and legally
>>>unambiguous licence.  Have these same lawyers reviewed the ODBL and given
>>>it the thumbs up?
>>
>>Several lawyers have looked at ODbL and commented.
>
> Yes - specifically what I was asking about was whether these same people
> who decided they were unable to use OSM data under CC-BY-SA would be
> happy to use it under ODBL.  (Myself, I suspect not!)

we'll have to wait and see if they respond to the open letter. i
wouldn't want to put words in their mouths, but i suspect that ODbL
clears up a lot of the uncertainties with CC BY-SA.

>>you say simpler and legally unambiguous, but it's become clear to me
>>from my work on the LWG that it is impossible for something to be
>>simple, unambiguous and global in scope. copyright law is sort-of
>>harmonised across the world by the Berne, Buenos Aires and Universal
>>Copyright Conventions, which makes it easier to write licenses based
>>on copyrights. there's just nothing like that for mostly factual
>>databases yet.
>
> Agreed.  My inclination would be to keep things simple and stick with
> copyright - with an additional permission grant of the database right
> in countries where a database right exists.  ('You may use and copy
> the database as long as you distribute the result under CC-BY-SA, and
> grant this same database permission to the recipient.')

ODbL does exactly this: it is a copyright and database rights license,
in addition to being a contract. the contractual part is necessary
because copyright + database rights almost certainly doesn't give
enough protection in most of the non-EU world, e.g: USA.

> Clearly there is a tradeoff to be made between simplicity and covering
> every possible theoretical case where somebody in some jurisdiction might
> possibly be able to persuade a court that they can copy OSM's data.
> It seems that the ODBL optimizes for the latter.

ODbL optimises for a trade-off of simplicity and completeness. it has
been through several comment stages and, at each stage, people said it
was too complex. however, when you dig into any particular clause
you'll find that they are necessarily complex. i'm not saying it can't
be shortened - just that most of the unnecessary complexity has
already been removed. lawyers don't revel in complexity for
complexity's sake - they deal with it because it's an unavoidable part
of the legal system.

even if you were to optimise for size over coverage, you'd still want
it to work in at least the EU and USA. the EU needs the bits about
database rights, the USA needs the bits about contract. throw in the
bits about copyright in an attempt to cover that base as well; that's
the ODbL!

>>here is my rationale for moving away from CC BY-SA
>>http://www.osmfoundation.org/wiki/License/Why_CC_BY-SA_is_Unsuitable
>
> Thanks.  Those are indeed problems with the licence.  But only the first
> one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
> addressed by dual-licensing under both Creative Commons and some other,
> more permissive (and acceptable-to-some-lawyers) licence.  I would happily
> support such a move.

you'd happily support distributing the data under a license which is
not likely to protect it?

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Matt Amos]

On Tue, Oct 27, 2009 at 11:30 AM, Ed Avis  wrote:
> Tom Hughes  writes:
>
>>>When I look around I see a thriving OSM project, with no evidence that the
>>>current CC-BY-SA licence has held back people from contributing or led to
>>>leechers distributing their own OSM-derived data under unfree terms.
>
>>You've enumerated two possible failures modes for the current license
>>but ignored one important one - whether people are being put off reusing
>>our data because of uncertainty over the license.
>>
>>We know for a fact that a number of people (especially people that have
>>asked their lawyers for an opinion) have indeed decided not to use our
>>data for this reason.
>
> That is certainly a good reason to switch to a simpler and legally
> unambiguous licence.  Have these same lawyers reviewed the ODBL and given
> it the thumbs up?

several lawyers have looked at ODbL and commented. some have posted
their views publicly
http://wiki.openstreetmap.org/wiki/Open_Database_License#ODbL_reviews_from_lawyers

there is an open letter requesting comment out at the moment, but we
have so far not received any publishable responses.

you say simpler and legally unambiguous, but it's become clear to me
from my work on the LWG that it is impossible for something to be
simple, unambiguous and global in scope. copyright law is sort-of
harmonised across the world by the Berne, Buenos Aires and Universal
Copyright Conventions, which makes it easier to write licenses based
on copyrights. there's just nothing like that for mostly factual
databases yet.

> (It would also be a good reason to dual-license the OSM content both under
> Creative Commons and under a somehow more friendly licence.  As a rationale
> for dropping CC altogether it makes less sense.)

here is my rationale for moving away from CC BY-SA
http://www.osmfoundation.org/wiki/License/Why_CC_BY-SA_is_Unsuitable

in short:
1) it probably doesn't protect factual (or mostly-factual) data like
OSM in most of the world
2) it is very hard to use in conjunction with other datasets, as it
doesn't define derivative very well
3) the "share-alike" provision applies to the work, not the database
4) it is unclear how to attribute a large project like OSM

not all of these issues are fully solved by ODbL - but it's a step in
the right direction.

cheers,

matt

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Tom Hughes  writes:

>>When I look around I see a thriving OSM project, with no evidence that the
>>current CC-BY-SA licence has held back people from contributing or led to
>>leechers distributing their own OSM-derived data under unfree terms.

>You've enumerated two possible failures modes for the current license 
>but ignored one important one - whether people are being put off reusing 
>our data because of uncertainty over the license.
>
>We know for a fact that a number of people (especially people that have 
>asked their lawyers for an opinion) have indeed decided not to use our 
>data for this reason.

That is certainly a good reason to switch to a simpler and legally
unambiguous licence.  Have these same lawyers reviewed the ODBL and given
it the thumbs up?

(It would also be a good reason to dual-license the OSM content both under
Creative Commons and under a somehow more friendly licence.  As a rationale
for dropping CC altogether it makes less sense.)

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Tom Hughes]

On 27/10/09 11:04, Ed Avis wrote:
> Frederik Ramm  writes:
>
>>> Again, is there any evidence (rather than just repetition of the same
>>> opinions) that in some country, OSM data is effectively in the public 
>>> domain?
>>
>> If your question is: "Has anybody ever used OSM data without regard to
>> the CC-BY-SA license, been sued, and lost" then the answer is, to my
>> knowledge, no.
>
> That would be needed to prove that CC-BY-SA is effective in some country.
> But I feel that the burden of proof is the other way around.  If you suggest
> dropping the existing licence and moving to a much more complicated new one,
> you need to show good evidence that the current licence is not working.
> When I look around I see a thriving OSM project, with no evidence that the
> current CC-BY-SA licence has held back people from contributing or led to
> leechers distributing their own OSM-derived data under unfree terms.
> (That said, there are some cases where the ODBL is more permissive, since 
> AFAIK
> it allows rendered map images to be distributed under the terms you want.)

You've enumerated two possible failures modes for the current license 
but ignored one important one - whether people are being put off reusing 
our data because of uncertainty over the license.

We know for a fact that a number of people (especially people that have 
asked their lawyers for an opinion) have indeed decided not to use our 
data for this reason.

>> The contract approach is primarily there because many believe the US to
>> be such a country.
>
> That might be so, but again, I really doubt you can copy maps with impunity,
> otherwise we would be copying street names from Google.

Ignoring the contract restrictions Google impose via their terms of use 
you mean? You see, other people do think contracts are needed ;-)

Yes, I know that the whole question of whether those terms are binding 
in contract law given the lack of explicit acceptance is an open one but 
it certainly hasn't stopped them trying.

Tom

-- 
Tom Hughes (t...@compton.nu)
http://www.compton.nu/

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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

Frederik Ramm  writes:

>Indeed, there are in fact people who have gone on record saying they 
>will stop contributing, and remove their previous contributions, if OSM 
>were to become a PD project.

But presumably nobody who will stop contributing if OSM continues to be
licensed under Creative Commons share-alike terms?

>>Again, is there any evidence (rather than just repetition of the same
>>opinions) that in some country, OSM data is effectively in the public domain?
>
>If your question is: "Has anybody ever used OSM data without regard to 
>the CC-BY-SA license, been sued, and lost" then the answer is, to my 
>knowledge, no.

That would be needed to prove that CC-BY-SA is effective in some country.
But I feel that the burden of proof is the other way around.  If you suggest
dropping the existing licence and moving to a much more complicated new one,
you need to show good evidence that the current licence is not working.
When I look around I see a thriving OSM project, with no evidence that the
current CC-BY-SA licence has held back people from contributing or led to
leechers distributing their own OSM-derived data under unfree terms.
(That said, there are some cases where the ODBL is more permissive, since AFAIK
it allows rendered map images to be distributed under the terms you want.)

>The contract approach is primarily there because many believe the US to 
>be such a country.

That might be so, but again, I really doubt you can copy maps with impunity,
otherwise we would be copying street names from Google.

-- 
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Re: [OSM-legal-talk] ODBL enforcement: contract law and remedies

[Frederik Ramm]

Hi,

Ed Avis wrote:
> This is where I disagree (or at least, am unpersuaded so far) since I
> haven't seen any hard evidence that copyright is inadequate.  If this were
> the case, then there would be no need for anybody to give permission for
> relicensing, since under the current copyright-only setup anybody (including
> the OSMF) could just take the data and relicense it under the terms they want.

Technically true, but in between the legal and the illegal we have the 
category "legally possible but frowned upon", and OSMF would probably 
not like to be seen in that category ;-)

> However, I recognize that this is a matter of opinion, not fact, and there
> must be those within the project who think that we should try to override
> national law in favour of stronger protections, just as EULAs for computer
> software attempt to override legal rights to reverse engineering.

Indeed, there are in fact people who have gone on record saying they 
will stop contributing, and remove their previous contributions, if OSM 
were to become a PD project.

> There is still the small question of whether any such place exists.  Again,
> is there any evidence (rather than just repetition of the same opinions)
> that in some country, OSM data is effectively in the public domain?

If your question is: "Has anybody ever used OSM data without regard to 
the CC-BY-SA license, been sued, and lost" then the answer is, to my 
knowledge, no. (I don't know if CC-BY-SA has ever been tested in court, 
even with regards to clearly copyrightable works.)

> And is that country significant enough to make it worth imposing a new, 
> contract-
> based licence on the rest of the world just to address this 'problem'?

The contract approach is primarily there because many believe the US to 
be such a country.

>> The Science Commons people, righly, say that it is morally doubtful to 
>> claim copyright where none exists, and I think in this vein the ODbL is 
>> morally superior to CC-BY-SA for OSM data, because the latter is based 
>> on copyright which in all likelihood does not exist for OSM data.
> 
> That's interesting.  However the ODBL also claims to be a copyright licence,
> while acknowledging that what is copyrightable varies between jurisdictions.

ODbL does not make an attempt to extend copyright to individual items in 
the database (saying that this must be governed by another license). As 
I understand it, the copyright aspect of ODbL only covers things like 
the data structure or schema etc., but not the contents.

Bye
Frederik

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

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[OSM-legal-talk] ODBL enforcement: contract law and remedies

[Ed Avis]

One issue which I don't think has been raised so far is whether the
ODBL's use of contract law as an enforcement mechanism might in fact
make it harder to enforce.

In common-law countries the remedy for breach of contract is damages.
For something like OSM which is distributed free of charge, it can be
hard to persuade a court that monetary damages are appropriate.  A
much stronger penalty is an injunction forbidding further use of the
OSM data.  However, an injunction is an equitable remedy and is not
normally available in breach of contract suits.

That is why in software licensing the question of whether a licence is
a contract or not is so important.  Perhaps surprisingly, the answer
that free software developers want in order to enforce copyleft
licences is 'no'.  They are not contracts, but grants of permission;
so if someone doesn't hold to the licence, you can seek an injunction
to stop them doing what they're doing.  By contrast if they were able
to persuade a court that the licence was a contract, all sorts of
questions arise about how far the contract's terms are enforceable,
and what is the material harm done to the copyright holder, which
determines the damages payable.

Please see  which describes the JMRI
case.  At first the district court in the US ruled that the Artistic
License (a free software licence used by this project) was in fact a
contract.  As the LWN article notes, that was bad news: to enforce the
licence effectively you want it to *not* be a contract.  Fortunately
that decision was overturned on appeal, setting a strong precedent
that free software licences (stated as permission grants) are
enforceable.

I am concerned that the ODBL throws this away by explicitly stating
that 'the ODbL is also an agreement in contract'.  Does that not
weaken the ability to take out injunctions or seek other equitable
remedies against those who violate the licence?  It would be good to
see that the OSM Foundation has taken legal advice on this point; I
don't see it mentioned in the recently sent out list of open
questions.

I fear the OSMF may be planning to eliminate CC-BY-SA permissions in
the name of stronger copyleft, but in fact not achieve that, since a
contract-based licence is more difficult to enforce.

-- 
Ed Avis 


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