Re: [OSM-legal-talk] Contributor Terms upgrade ready

[Kai Krueger]

Mike Collinson wrote:
> 
> Yes the OSMF could produce a new set of Contributor Terms but No it could
> not force you or other existing contributor to accept them.
> 

Isn't that exactly what the OSMF board has just done? I quote from the
12/12/2010 board minutes:
"The OSMF board mandates the LWG to enforce mandatory acceptance of the CT
and ODBL in order to edit the database by March 31st"

OSMF can't force you to accept them, but if you don't, you loose your active
contributor status and thus your right to vote.

The "free and open" restriction probably still holds, but the vote does seem
to be circumventable by the method suggested by Olaf, by including what you
want to vote for in the new CT, then enforce those CT and finally vote, once
only those are active contributors who have already agreed to the change
through the new CT. 

Perhaps the vote can be extended to anyone who ever reached active
contributor status and responds to a request to vote within 3 weeks assuming
a reasonable effort has been undertaken to deliver the request to vote.

Kai
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Sent from the Legal Talk mailing list archive at Nabble.com.

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Re: [OSM-legal-talk] Contributor Terms upgrade ready

[Mike Collinson]

At 04:10 PM 18/01/2011, andrzej zaborowski wrote:
>With this new version, do you/others think it is OK for people who have 
>previously submitted content on which they received a CC-By-SA + ODbL dual 
>license (taking into account the future license change) to click the accept 
>button? Cheers

Me, yes.

Mike



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Re: [OSM-legal-talk] Contributor Terms upgrade ready

[Mike Collinson]

Olaf,

Thanks, it looks like the clean text has been copied from a source other than 
the diff-marked text. I've deleted it. We are meeting tonight and I'll stop it 
going live until we double-checked the rest of the text too.

Regarding your main concern in 
http://lists.openstreetmap.org/pipermail/legal-talk/2010-November/005256.html,
Yes the OSMF could produce a new set of Contributor Terms but No it could not 
force you or other existing contributor to accept them. The more existing 
contributors there are, the stronger it gets. We deliberately missed out those 
words that you see on many commercial sites along the lines of "you hereby 
accept these terms and any future update of those terms as published by Acme 
Corp. from time to time." So the 2/3 majority sticks. The constraint for the 
OSMF to ask active contributors also sticks as does the constraint to only use 
a free and open license ... so we believe we've got a very effective 
anti-hijacking system in place.

Mike

At 06:00 PM 18/01/2011, Olaf Schmidt-Wischhöfer wrote:
>Hi Mike,
>
>on December 5, you wrote an email to this list that the words "and any party 
>that receives Your Contents" in section 2 were only added because of a cock-up 
>and you promised to investigate. Now they are in the final text as well, but 
>not marked as such in the diff marked version.
>
>The effect of these additional words is that all content becomes available to 
>everyone without any limitation whatsoever, i.e. it makes all contributions 
>effectively public domain.
>
>Can you confirm that this is the only undocumented change, that it was a 
>mistake, and that it will be corrected before going live?
>
>I would also like to give you feedback on the new CT. They are improved over 
>the old version, but they still do not address my main concern that I 
>described in the second half of an email I sent in November:
>http://lists.openstreetmap.org/pipermail/legal-talk/2010-November/005256.html
>
>Olaf


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Re: [OSM-legal-talk] Contributor Terms upgrade ready

[Olaf Schmidt-Wischhöfer]

Hi Mike,

on December 5, you wrote an email to this list that the words "and any party 
that receives Your Contents" in section 2 were only added because of a cock-up 
and you promised to investigate. Now they are in the final text as well, but 
not marked as such in the diff marked version.

The effect of these additional words is that all content becomes available to 
everyone without any limitation whatsoever, i.e. it makes all contributions 
effectively public domain.

Can you confirm that this is the only undocumented change, that it was a 
mistake, and that it will be corrected before going live?

I would also like to give you feedback on the new CT. They are improved over 
the old version, but they still do not address my main concern that I 
described in the second half of an email I sent in November:
http://lists.openstreetmap.org/pipermail/legal-talk/2010-November/005256.html

Olaf

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Re: [OSM-legal-talk] Contributor Terms upgrade ready

[andrzej zaborowski]

On 18 January 2011 15:48, Mike Collinson  wrote:
> The links below show the wording we will formally release. I will confirm 
> when it is done.  We will then set up and announce mechanism whereby anyone 
> who has accepted the 1.0 terms can upgrade, this will be entirely optional.
>
> The wording drops one suggested change -  the addition of the phrase, "and to 
> the extent that you are able to do so" or similar into clause (2) - we'd like 
> to look at this one further as it has some potential side-effects as 
> currently worded.

With this new version, do you/others think it is OK for people who
have previously submitted content on which they received a CC-By-SA +
ODbL dual license (taking into account the future license change) to
click the accept button?

Cheers

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[OSM-legal-talk] Contributor Terms upgrade ready

[Mike Collinson]

The links below show the wording we will formally release. I will confirm when 
it is done.  We will then set up and announce mechanism whereby anyone who has 
accepted the 1.0 terms can upgrade, this will be entirely optional.

The wording drops one suggested change -  the addition of the phrase, "and to 
the extent that you are able to do so" or similar into clause (2) - we'd like 
to look at this one further as it has some potential side-effects as currently 
worded.

Mike
License Working Group

Clean copy.:

https://docs.google.com/document/pub?id=1jkS-P8yBbivdF_NGNNphH9_crEXGz6uw6s45gIuNzR4

Diff marked version:

https://docs.google.com/document/pub?id=1jY58fD3JyNUjzmecrpNejoOt4OnfHeEM-6o8rD5hCLY


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Re: [OSM-legal-talk] Contributor Terms - The Early Years

[Francis Davey]

On 23 August 2010 01:34, Richard Weait  wrote:
>
> That's an open question for the lawyer that wrote the CT.  In casual
> conversation with one lawyer ("casual" as in I wasn't paying the
> lawyer) I was told that legal-English is not FORTRAN and the or is not
> required for legal-English syntax.  This one lawyer does not trump the
> OSMF lawyer, this is just one data point.  Perhaps any lawyers on this
> list would comment on this matter in general?

Well, the at common law (and therefore probably in every current
common law jurisdiction I know of and probably even the US) the
interpretation of contracts is a mixed question of fact and law (if
there were a jury, the judge would tell them the rules of
interpretation, the jury would apply them). In practice this means
that aside from questions such as what background material is
available for the interpretation exercise (eg the draft version),
deciding what a contract means is not really a legal question, its a
factual one. It would thus depend on who wrote it, what it was for and
so on.

This is lengthy way of saying that a lawyer may not be in a much
better position than you in determining what a contract means, and
also that there are no necessarily any "special" or "magic" words that
mean particular things in a contract.

The test in English law (again probably a common law generality) is to
look at what an objective observer reading the contract at the time it
was made would assume that the parties meant by it.

Thus English law does not work like FORTRAN it is rather more
forgiving (though those with long memories will recall that FORTRAN
did used to try to assist by inferring information - when I worked as
a duty programming advisor I would require that programmers wrote
IMPLICIT NONE at the start of their programs to introduce some kind of
sanity).

So CT 1.0 is certainly a head scratcher. I can easily see a judge
puzzling over what was intended by the internal contradiction between
sentence 1 (which requires that a contributor be a "copyright holders"
whatever they are) and the last sentence which only applies to someone
who is not a "copyright holder".

I think (and this is not a formal legal opinion - sorry) that a court
is most likely to decide that what is intended is to permit non
copyright holders to contribute provided they have permission of the
"copyright holder" to do so.

Quite how the second sentence of 1.0 factors in is unclear - if the
job its trying to do is to filter out "copyright holders" who are for
some reason (perhaps because of a binding contract or some rule of
law) unable to give the permission without violation of "some law"
then the last sentence doesn't do that job - it requires that the
contributor have permission of a "copyright holder" but doesn't seem
to require that that holder be able to grant that permission lawfully.

To Anthony's question I'd say the answer was "probably, yes" despite
those objections.

So it is very oddly drafted and its not immediately clear what it is
trying to do precisely, which makes interpretation difficult for a
court.

Now on the specific question: may a non-copyright holder contribute
under the terms? As I have said a court is likely to conclude that
they may. This is fortified by various rules of law, in particular
"contra proferentem" - as the authors and profferors of the contract,
OSMF are assumed to know what they are doing and any ambiguity would
be resolved against them and in favour of a contributor. This is what
(I think) is meant by another poster to this thread talking about a
"contract of adhesion" - though in English law that sort of doctrine
relates particularly to unfair terms and consumers rather than as a
generality.

-- 
Francis Davey

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Re: [OSM-legal-talk] Contributor Terms

[Richard Fairhurst]

[moved from t...@]

Dave F. wrote:

On 13/08/2010 10:34, Richard Fairhurst wrote:

...(This is one of the reasons I'm not
greatly enamoured of the upgrade clause in CT 3.)

Am I understanding this correctly?
Of the people that drafted the CT, 50% now don't like it?


The Contributor Terms postdate my spell on OSMF; I wasn't involved in 
drafting them.


Some Contributor Terms are necessary. My own preference would be for 
ones that do less than the current set. However, my main concern is that 
ODbL itself is adopted: it's an excellent licence and much more suitable 
for OSM than CC-BY-SA.


As the Rolling Stones once sang, you can't always get what you want, so 
I'm happy to sign up for the current Contributor Terms if it means we 
get ODbL.



Who's Jordan? (Lawyer?)


A specialist IP lawyer (though not OSMF's) and one of the authors of ODbL.

cheers
Richard

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Re: [OSM-legal-talk] Contributor Terms latest

[Gervase Markham]

On 23/02/10 21:16, Mike Collinson wrote:
> - British spelling "licence" noun used. (can anyone confirm that I am
> right in leaving verb license, sublicense as is, I am too long abroad).

That is correct. In standard (British :-) English, licence is the noun
and license is the verb.

> - defining active contributor as a "natural person". This serves the
> purpose of "no bots". OPEN QUESTION: We are not sure about this one as
> this it excludes corporations or other legally organised entities. If
> they have multiple accounts for individual staff, it has the reverse
> effect. Perhaps not a good idea? Comments welcome.

I think that if a corporation has multiple people actively working on
the map, that's fair enough - multiple votes. I don't think you'd have
more scope for sockpuppetry than you might with normal users. ("Hey, I
can get 12 votes instead of 1 by editing with a different account every
month...") Well, perhaps it would be harder to detect because you'd
_expect_ them all to have the same IP...

Gerv


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Re: [OSM-legal-talk] Contributor Terms latest

[Mike Collinson]

Thanks Oliver. 

We have a separate project to look at general terms of use of OSM and OSMF 
websites where this certainly is an issue. These Contributor Terms are strictly 
for the addition of geodata. We have not been advised it has been an issue but 
it will do no harm to check explicitly if not already done.

Mike

At 10:40 PM 23/02/2010, Oliver Kuehn (skobbler) wrote:

>"Apart from that, this is the version we would like to finalise on and which
>has had legal review.  Please shout if you see any holes."
>
>Hi Michael,
>
>I wonder if there should not be a clarification that any content provided
>should (a) NOT contain material that is false, intentionally misleading, or
>defamatory; contains material that is unlawful, including illegal hate
>speech or pornography; exploits or otherwise harms minors; or violates or
>advocates the violation of any law or regulation and (b) be in line with
>some generic principles of content that is welcome?
>
>I have not seen any other terms that consider these points.
>
>Regards,
>Oliver


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[OSM-legal-talk] Contributor Terms latest

[Mike Collinson]

http://docs.google.com/View?id=dd9g3qjp_48c4sgs3d4
 shows where we are at.

We've one open question about "natural person" below that we would appreciate 
input on.

Apart from that, this is the version we would like to finalise on and which has 
had legal review.  Please shout if you see any holes. We'll be proceeding to 
make French and Italian translations as soon as we can.

Thanks to Francis Davey for a number of specific suggestions.

Changes:

- British spelling "licence" noun used. (can anyone confirm that I am right in 
leaving verb license, sublicense as is, I am too long abroad).

- Edit period for active contributors extended from last 6 to last 12 months to 
enfranchise more contributors and to take into account folks who edit 
seasonally.

- We'd rather not insert an explicit phrase about suing. It is our 
understanding from legal review that OSMF clearly has the right to sue for 
copyright violations from its database right and copyright in the collective. 
On a practical level, we'd also be wanting to pursue effective methods within 
our means such as name-and-shaming. We therefore still feel this is better 
dealt with by creating explicit community guidelines. 

- an ambiguity in clause 3 removed by the insertion of the word "and".

- defining active contributor as a "natural person". This serves the purpose of 
"no bots". OPEN QUESTION: We are not sure about this one as this it excludes 
corporations or other legally organised entities. If they have multiple 
accounts for individual staff, it has the reverse effect. Perhaps not a good 
idea? Comments welcome.


Mike
License Working Group
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Re: [OSM-legal-talk] Contributor Terms (was Re: Copyright Assignment)

[Matt Amos]

On Tue, Jan 5, 2010 at 12:40 PM, Richard Fairhurst  wrote:
> We discussed this on IRC just before Christmas and it was suggested that
> simply removing (ii) would fix most of the issues. I would be very happy to
> see this happen. I think Matt was going to suggest this to LWG.
>
> So from here it looks to me as if LWG is taking note of people's suggestions
> just as it should be. But perhaps someone from LWG could confirm how/if the
> Contributor Terms might be revised in the light of these two suggestions.

yeah, it's on the (ever growing) list. unfortunately due to the
holiday season and us all being volunteers with other commitments on
our time, LWG hasn't had a full meeting since before christmas. full
service will resume shortly, though ;-)

cheers,

matt

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Re: [OSM-legal-talk] Contributor Terms

[Francis Davey]

2009/7/3 Ed Avis :
> Matt Amos  writes:
>
> Should say: You agree to only add contents for which you are the copyright
> holder, *or which are in the public domain*, *or which already have permission
> from the rights holder to distribute under Licence X*, or where you have 
> explicit
> permission from the rights holder to submit the content.
>

Why not something like "You agree only to add contents which may be
lawfully distributed under [ ] licence" or something like that.

-- 
Francis Davey

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