[OSM-legal-talk] Progressing OSM to a new data Licence regime

[SteveC]

Dear all

The OSMF has been actively investigating the license situation, in
that there are many problems with CCBYSAs application to data. We
think we have found a solution in the form of the Open Database
Licence [http://www.opencontentlawyer.com/open-data/open-database-licence/
]. This license is similar in many respects to the theme and goals of
our existing license but has the added benefit of being applicable to
our situation. One way to think of it is CCBYSA for databases.

It is early days in data licensing (as opposed to Free/Open software
or creative work licensing). The OSMF feel that the ODL license is the
way forward for our project and reject the Public Domain Dedication [http://www.opendatacommons.org/odc-public-domain-dedication-and-licence/
] because it offers no 'viral' (share alike) protection to the data.

Whilst the license is almost complete, the OSMF have communicated with
the authors and have noted a few improvements we would like to make
before releasing it (detailed in the FAQ). The FAQ is as of writing
not complete on purpose - we foresee questions and so on arising as a
result of this email and the FAQ to build on them. You are encouraged
to read the relevant licenses and contribute to the legal-talk mailing
list and FAQ.

The plan, essentially, is to switch license from CCBYSA 2.0 to the
Open Database Licence in 4 stages.

? Stage 1 - Get suggestions for any changes required in addition to
those identified by the OSMF
? Stage 2 - Engage the licenses author to amend the license as required
? Stage 3 - Email all OSM users who have contributed data with the
option of re-licensing their data
? Stage 4 - Remove all data from those who do not respond or respond
negatively (the hard bit)

These stages require patience, understanding, legal and technical
knowledge and represent an important change in OpenStreetMap. This
license is not the final decision, but a beginning. We won't find a
perfect license (indeed, many disagree on todays license) or one we
can all 100% agree on, but it's hoped that we can find the best
approach we can and the best way forward for OpenStreetMap.

PS Please remember to reply to legal-talk [http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk
]

FAQ etc on wiki:

http://wiki.openstreetmap.org/index.php/Open_Data_License
http://wiki.openstreetmap.org/index.php/Open_Data_License_FAQ


Steve Coast, Chairman of the OSMF

With thanks to Richard Fairhurst and Andy Robinson for direct
involvement and the whole OSMF board for support.

[tim]

Hello,

Few clarifications and questions about use cases.

If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words, there's
no requirement to distribute, but also, if the map images are
distributed, then it doesn't have to be under the same licence.

If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be able
for OSM to benefit from them?

How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?

Tim

[Tom Hughes]

In message <73c11890802040331y41e98882i9f41abdc15a6526c at mail.gmail.com>

Post by tim
If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words, there's
no requirement to distribute, but also, if the map images are
distributed, then it doesn't have to be under the same licence.

Well if you distribute the result as a database then that is a
derived database and you need to license it on the same terms
as I read things.

The wiki also implies that OSMF intends to ask for a Mozilla style
clause to make you actually offer the data back to us - at least
that is what I think it is saying. I'm not at all sure that is a
good idea though.

The wiki also says that a cartographer producing maps would need
to give their data back, but I don't see that in the license unless
they ship that map as a database rather than as a rendering. Especially
as the wiki then implies that "artistic cartography" doesn't have to
be contributed back.

Post by tim
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be able
for OSM to benefit from them?

I believe so, yes. A shapefile would be a derived database and hence
would have to be licensed on the same terms I believe.

Post by tim
How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?

Clearly that is distribution of the database so 4.6(b) would require
you to make an unrestricted version available.

Tom

[Nick Black]

Post by Tom Hughes
In message <73c11890802040331y41e98882i9f41abdc15a6526c at mail.gmail.com>

Post by tim
If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words, there's
no requirement to distribute, but also, if the map images are
distributed, then it doesn't have to be under the same licence.

Well if you distribute the result as a database then that is a
derived database and you need to license it on the same terms
as I read things.
The wiki also implies that OSMF intends to ask for a Mozilla style
clause to make you actually offer the data back to us - at least
that is what I think it is saying. I'm not at all sure that is a
good idea though.
The wiki also says that a cartographer producing maps would need
to give their data back, but I don't see that in the license unless
they ship that map as a database rather than as a rendering. Especially
as the wiki then implies that "artistic cartography" doesn't have to
be contributed back.

Post by tim
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be able
for OSM to benefit from them?

I believe so, yes. A shapefile would be a derived database and hence
would have to be licensed on the same terms I believe.

Post by tim
How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?

Clearly that is distribution of the database so 4.6(b) would require
you to make an unrestricted version available.

Unless it becomes a Collective Database, in which case the share-alike
clauses (4.4) do not apply. From my reading of the license, it looks
like a lot of use cases will hinge on an interpretation of a
Collective Database. So if I take TIGER, some of my own GPS points
and some OSM data, put them into a Shapefile and distribute them, then
share-alike does not apply. 4.6b also does not apply to a Collective
Database.

Post by Tom Hughes
Tom
--
Tom Hughes (tom at compton.nu)
http://www.compton.nu/
_______________________________________________
legal-talk mailing list
legal-talk at openstreetmap.org
http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk

[Tom Hughes]

In message <223020e60802040616o6b9562cbtcbd13a1e22dab768 at mail.gmail.com>

Post by Nick Black

Post by Tom Hughes
I believe so, yes. A shapefile would be a derived database and hence
would have to be licensed on the same terms I believe.

Post by tim
How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?

Clearly that is distribution of the database so 4.6(b) would require
you to make an unrestricted version available.

Unless it becomes a Collective Database, in which case the share-alike
clauses (4.4) do not apply. From my reading of the license, it looks
like a lot of use cases will hinge on an interpretation of a
Collective Database. So if I take TIGER, some of my own GPS points
and some OSM data, put them into a Shapefile and distribute them, then
share-alike does not apply. 4.6b also does not apply to a Collective
Database.

I think that distinction is actually fairly clear in that if you
have two separate shape files (or whatever format you choose) one
with the OSM data and one with other stuff then that is collective
but it you put it all in one common file that is derivative.

At least that's what the definitions section seems to say.

Tom

[Robert (Jamie) Munro]

Tom Hughes wrote:
| In message <223020e60802040616o6b9562cbtcbd13a1e22dab768 at mail.gmail.com>
| Nick Black <nickblack1 at gmail.com> wrote:
|
|> On Feb 4, 2008 11:41 AM, Tom Hughes <tom at compton.nu> wrote:
|>
|>> I believe so, yes. A shapefile would be a derived database and hence
|>> would have to be licensed on the same terms I believe.
|>>
|>>> How about putting my propriety data and OSM together locked within an
|>>> in-car sat nav system. Would this be classed as distribution of the
|>>> database? What should my company do in this case?
|>> Clearly that is distribution of the database so 4.6(b) would require
|>> you to make an unrestricted version available.
|> Unless it becomes a Collective Database, in which case the share-alike
|> clauses (4.4) do not apply. From my reading of the license, it looks
|> like a lot of use cases will hinge on an interpretation of a
|> Collective Database. So if I take TIGER, some of my own GPS points
|> and some OSM data, put them into a Shapefile and distribute them, then
|> share-alike does not apply. 4.6b also does not apply to a Collective
|> Database.
|
| I think that distinction is actually fairly clear in that if you
| have two separate shape files (or whatever format you choose) one
| with the OSM data and one with other stuff then that is collective
| but it you put it all in one common file that is derivative.

So if I create a MySQL database called osm with OSM data and create
another database called rjmunro with proprietary data on the same DB
server, and I do a query like "select * from osm.points inner join
rjmunro.descriptions", I don't have to share my descriptions, but if my
ISP only lets me have one database with multiple tables, so I name my
tables with a prefix, and my query becomes "select * from osm_points
inner join rjmunro_descriptions", then I have to share my data? Or only
if MySQL happens to put both tables in the same InnoDB data file?

That's only a clear definition if you are using simple shapefiles on a
conventional filesystem. What if I am using something like WinFS, where
(in theory) every file is just a blob in a huge database?


Robert (Jamie) Munro

[Iván Sánchez Ortega]

Post by tim
Hello,
Few clarifications and questions about use cases.
If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words, there's
no requirement to distribute, but also, if the map images are
distributed, then it doesn't have to be under the same licence.

If the data stops being a database (that meaning, if you render the data into
an image), the ODL-database stops applying.

IANAL, but for the avoidance of doubt, section 3.1.a should clarify the
concept of "Extraction". Now it reads:
"Licensor grants You a [...] licence to
a. Extraction and Re-utilisation of the whole or a Substantial part of the
Data;"

It should be made clear that, when converting the OSM data to a format not
considered a database, the license stops applying.

Local jurisdictions (such as spanish copyright law) may clarify that, but it
also should be present in the license IMHO.


I quote from the Spanish copyright law
(http://civil.udg.es/normacivil/estatal/reals/Lpi.html), article 133.3.a :

"b) Extracci?n, la transferencia permanente o temporal de la totalidad o de
una parte sustancial del contenido de una base de datos a otro soporte
cualquiera que sea el medio utilizado o la forma en que se realice."

Meaning: "to Extract is transfer all or a substantial part of the DB to
*other* media".

Again, to avoid problems, I suggest that the license clarifies "Extraction"
and "Derivative DB".



So, yes. If you render OSM into images, the images become just ODL-factual,
and you "lose" the viral portion of the ODL-database license.

Post by tim
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be able
for OSM to benefit from them?

Shapefiles qualify as databases. For the purposes of ODL-DB, they're
derivative DBs.

Post by tim
How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?

Yes, because the nav system internally uses something that resembles a
database. So, you're actually selling a derivative DB with every


I quote again from spanish law (art. 12.2):

"2. [...] se consideran bases de datos las colecciones de obras, de datos, o
de otros elementos independientes dispuestos de manera sistem?tica o met?dica
y accesibles individualmente por medios electr?nicos o de otra forma."

Basically meaning "A DB is a collection of data, metodically arranged". Which
covers the files on your nav system.

(Again, to avoid problems, I suggest that the license clarifies "Database".)


(The following disclaimers apply to this e-mail: IANAL, YMMV).


Cheers,
--
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[Richard Fairhurst]

Thanks for all the comments so far. This is an OSMF response drawn up
by those of us who've been taking this forward (myself, Steve, Andy),
but we are, of course, not lawyers and so it's not a definitive legal
answer.

As per Steve's e-mail, we would intend to assess all the feedback and
take it to Jordan Hatcher as we proceed with the licence.

Steve, how do we avoid the situation where e.g. someone who
disagrees the new license has run a bot over all of Cambridge to
tweak things (as has indeed happened to many of the ways) or who has
'tidied up' bits of my mapping so all my surveying is now labelled
with their name. Does all of my mapping of Cambridge get deleted
because someone has later modified my work in a trivial way?
(Conversely, can I just select a big area, and add a new tag to
transfer the data to my name and cause someone who doesn't agree the
new license to be retained?)

Firstly, rights only exist in the data where a "substantial"
contribution has been made - so a trivial contribution like this would
be unlikely to affect the relicensing.

Secondly, we do of course have full history of all data (albeit some
of it archived), so your original Cambridge data (assuming you agreed
to relicense) would still be available to OSM.

If we're going to do this anyway, can we not allow users to mark
their preference as public domain too? It seems a significant
number of OSM participants may be perfectly happy to have their data
given away PD, and storing an option per user would make this
possible. We're going to do that work of asking each user anyway,
so why not let each user mark themselves as
a) Public Domain
b) Open Database License
c) CC by SA (the default now)

Thus far everyone who signs up to the project has already agreed to
CC-BY-SA. We don't believe it's a viable option for data licensing
going forward so would not seek to offer it as a choice.

The idea of storing an optional 'PD?' preference per user is an
interesting one and we'd welcome feedback as to whether there'd be the
demand for this. Effectively this would be requesting that OSMF, or
anyone else, creates a public domain database from your contributions.

Of course, if you agree to PD, your data can be relicensed in any way
so this would also imply acceptance that it can be distributed under
ODC-Database (or anything else).

I don't quite understand the difference between ODL-factual
and Public Domain.
I mean, what would be different if, instead of ODL-DB + ODL-factual,
we used ODL-DB + PD ???

This would certainly be an option. However, ODC-Factual is an explicit
grant of rights and is applicable in countries where there is no
formal concept of the public domain.

I would like to know more about our talks with the CC folks.
After all, the people at Creative Commons have a lot of respect from
"... We would have liked Creative Commons to have offered a
sharealike/attribution data licence that we could adopt. However,
their position is that map data should be dedicated to the public
domain, ..., the OSMF board does not believe this route is in the
project's best long term interests."
So they actually listened to us and to the doubts we (some of us)
have about CC0, but still they take the position that map data
should be CC0. I am sure they didn't just say so on a whim, they
must have had good and solid reasons for that, and the OSMF must
have even better and more solid reasons for rejecting their
suggestion.
[...]
Why, exactly, does CC recommend CC0 even after they have thoroughly
looked at our situation, and on what basis does the OSMF board
reject the CC suggestion?

Creative Commons' position is this (summarised from an e-mail to OSMF
by John Wilbanks, head of Science Commons, to which CC has expressly
delegated its policy on data licensing):

A licensing approach based on intellectual property (i.e. a
copyright-based licence) is not applicable for factual recordings. The
EU Database Directive may apply but CC believes this is bad law and
does not want to use it.

A contractual approach could work in theory, but is only binding on
those who sign it, and CC believes any "bad guys" wanting to find a
way around the licence would do so.

OSMF disagrees significantly with this assessment of a contractual
approach. Commercial geodata (TeleAtlas, Navteq etc.) is protected
this way. We also believe that the experience of free software/open
source licences is that enforcement is largely achieved by public
pressure: the GPL is enforced more through bad publicity for alleged
violators (or "bad guys") than by actual legal action.

OSMF believes that CC's position is essentially formed from their work
with scientific data, and that their recommended approach of "norms"
is laudable but less likely to be practical in the geodata market.

If there was a community consensus to move OSM towards a CC0-like
approach then we would, of course, give it further consideration but
we believe this is not the case.

We should say that CC have very generously given of their time to
communicate their position and the reasons for forming it, and we do
appreciate that.

If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words,
there's no requirement to distribute, but also, if the map images
are distributed, then it doesn't have to be under the same licence.
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be
able for OSM to benefit from them?
How about putting my propriety data and OSM together locked within
an in-car sat nav system. Would this be classed as distribution of
the database? What should my company do in this case?

These should be answered at the "differences" page at
http://wiki.openstreetmap.org/index.php/Open_Data_License
(which wasn't originally linked from the FAQ - apologies)

First case: if the work is derivative then you do have to give your
data back. We are asking the licence authors to add a further
provision to make it explicit that the data has to be contributed
back. This is probably the aspect of the licence over which we've had
most discussions and we are determined to get it right.

Second case: yes, they would come under the same licence (again,
assuming that the result is derivative).

Third case: there's an explicit clause (4.6) that a derivative
database protected by technological measures (such as one sealed in a
satnav) must also be made available in unrestricted form.



Richard (for OSMF)

[Tom Hughes]

In message <20080204144752.f1eq9iook8csk40c at webmail.systemed.net>

Post by Richard Fairhurst

If we're going to do this anyway, can we not allow users to mark
their preference as public domain too? It seems a significant
number of OSM participants may be perfectly happy to have their data
given away PD, and storing an option per user would make this
possible. We're going to do that work of asking each user anyway,
so why not let each user mark themselves as
a) Public Domain
b) Open Database License
c) CC by SA (the default now)

Thus far everyone who signs up to the project has already agreed to
CC-BY-SA. We don't believe it's a viable option for data licensing
going forward so would not seek to offer it as a choice.
The idea of storing an optional 'PD?' preference per user is an
interesting one and we'd welcome feedback as to whether there'd be the
demand for this. Effectively this would be requesting that OSMF, or
anyone else, creates a public domain database from your contributions.

One problem with this idea goes back to David's question about
edit history - if we had a per-user PD flag then only objects which
had never been touched by somebody without that flag set could be
included in any PD data set (modulo the whole question of whether
any edits by such people were "significant" which would be hard to
determine automatically).

Post by Richard Fairhurst

If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words,
there's no requirement to distribute, but also, if the map images
are distributed, then it doesn't have to be under the same licence.
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be
able for OSM to benefit from them?
How about putting my propriety data and OSM together locked within
an in-car sat nav system. Would this be classed as distribution of
the database? What should my company do in this case?

These should be answered at the "differences" page at
http://wiki.openstreetmap.org/index.php/Open_Data_License
(which wasn't originally linked from the FAQ - apologies)
First case: if the work is derivative then you do have to give your
data back. We are asking the licence authors to add a further
provision to make it explicit that the data has to be contributed
back. This is probably the aspect of the licence over which we've had
most discussions and we are determined to get it right.

I think the concept of an explicit requirement to hand back data
is the part of this plan that I gave most concerns about - it was
certainly far and away the most problematic clause of the original
Mozilla license I think, and the whole idea seems to have largely
vanished since then in most open licenses.

Tom

[Gervase Markham]

Post by Tom Hughes
I think the concept of an explicit requirement to hand back data
is the part of this plan that I gave most concerns about - it was
certainly far and away the most problematic clause of the original
Mozilla license I think, and the whole idea seems to have largely
vanished since then in most open licenses.

I think your memory may be failing you here.

The MPL version 1.0 had a clause about making source available:

"3.2. Availability of Source Code.
Any Modification which You create or to which You contribute must be
made available in Source Code form under the terms of this License
either on the same media as an Executable version or via an accepted
Electronic Distribution Mechanism to anyone to whom you made an
Executable version available; ..."
http://www.mozilla.org/MPL/MPL-1.0.html

and this clause is unchanged in MPL 1.1. The annotated MPL 1.0 says:

"This provision is intended to ensure availability of code, while
minimizing the burden on each Contributor. It is based on the principle
of "code follows the executable" that is found in the GPL. It does not
require that you return Modifications to mozilla.org or any other named
organization. However, you may do so if you choose, and we hope that you
wish to participate in the development community that mozilla.org is
chartered to foster."
http://www.mozilla.org/MPL/annotations-1.0.html

However, I agree that an explicit requirement to hand data back to OSM
(as opposed to a requirement to hand data to whoever you give the
derived work to) is problematic. If OSM data were software, this sort of
clause would probably make the licence not conform to the Debian Free
Software Guidelines. It would certainly fail both the Desert Island and
Dissident tests.

Gerv

[Robert (Jamie) Munro]

Tom Hughes wrote:
| In message <20080204144752.f1eq9iook8csk40c at webmail.systemed.net>
| Richard Fairhurst <richard at systemed.net> wrote:
|
|> Tom Evans wrote:
|>> If we're going to do this anyway, can we not allow users to mark
|>> their preference as public domain too? It seems a significant
|>> number of OSM participants may be perfectly happy to have their data
|>> given away PD, and storing an option per user would make this
|>> possible. We're going to do that work of asking each user anyway,
|>> so why not let each user mark themselves as
|>> one of:
|>>
|>> a) Public Domain
|>> b) Open Database License
|>> c) CC by SA (the default now)
|> Thus far everyone who signs up to the project has already agreed to
|> CC-BY-SA. We don't believe it's a viable option for data licensing
|> going forward so would not seek to offer it as a choice.
|>
|> The idea of storing an optional 'PD?' preference per user is an
|> interesting one and we'd welcome feedback as to whether there'd be the
|> demand for this. Effectively this would be requesting that OSMF, or
|> anyone else, creates a public domain database from your contributions.
|
| One problem with this idea goes back to David's question about
| edit history - if we had a per-user PD flag then only objects which
| had never been touched by somebody without that flag set could be
| included in any PD data set (modulo the whole question of whether
| any edits by such people were "significant" which would be hard to
| determine automatically).

I think that we should reduce the time before the data becomes public
domain from year of editors death (which will be very hard for someone
in 100 years time to find out) + 70 years to year of entry into the DB +
about 10 years. I don't think any more really helps OSM. The idea that
someone in around 100 years time will still have to struggle with the
license issues we are setting up now on my data really worries me (I
expect most of the community is young enough that we will still be alive
more than 30 years from now).

Also I think that data should be assigned to the foundation, so that
they can allow exceptions absolutely, rather than have to say "Well, I
think that's OK, please go and hire your own lawyer to interpret our
license". If the community agreed, the foundation could use this as a
source of income, like MusicBrainz. This would require the foundation to
have a fairly solid democratic basis.

Robert (Jamie) Munro

[Lars Aronsson]

Post by Robert (Jamie) Munro
I think that we should reduce the time before the data becomes
public domain from year of editors death (which will be very
hard for someone in 100 years time to find out) + 70 years to
year of entry into the DB + about 10 years.

Only traditional copyright expires after life+70 years. This is
applicable to software source code and might be applicable to
artwork, such as mapnik renderings.

But database rights only last 15 years after the year of
publication. All the discussion of which license to use for OSM
data, is only a matter for the first 15 years. Any planet.osm from
2006 will enter the public domain at the end of 2021.

[Robert (Jamie) Munro]

Lars Aronsson wrote:
| Robert (Jamie) Munro wrote:
|
|> I think that we should reduce the time before the data becomes
|> public domain from year of editors death (which will be very
|> hard for someone in 100 years time to find out) + 70 years to
|> year of entry into the DB + about 10 years.
|
| Only traditional copyright expires after life+70 years. This is
| applicable to software source code and might be applicable to
| artwork, such as mapnik renderings.
|
| But database rights only last 15 years after the year of
| publication. All the discussion of which license to use for OSM
| data, is only a matter for the first 15 years. Any planet.osm from
| 2006 will enter the public domain at the end of 2021.

15 years is good. I think we should make it clear that we believe in the
15 years number, and if the term is extended in the future, or someone
is from a different jurisdiction, we won't assert more than 15 years.

Robert (Jamie) Munro

Ps. does that mean that if someone has a 1993 or earlier postcode DB
lying around, we can bulk load it into Free the Postcode?

[Iván Sánchez Ortega]

Post by Robert (Jamie) Munro
Ps. does that mean that if someone has a 1993 or earlier postcode DB
lying around, we can bulk load it into Free the Postcode?

It depends.

It depends on your view over the "copyrightability" of individual pieces of
data.

If a singular piece of data is "copyrightable", then the 15-yeard-old database
right expires, but the individual copyrights do not.

If a singular piece of data is not "copyrightable", then the data is basically
in the public domain.


Cheers,
--
----------------------------------
Iv?n S?nchez Ortega <ivansanchez at escomposlinux.org>

Errar es humano, pero para liar las cosas realmente bien necesitas un
ordenador.
-- dicho popular del mundo inform?tico,
atribuido a Paul Ehrlich (Premio N?bel de F?sica)
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[Tom Hughes]

In message <47A87103.5030105 at arjam.net>

Post by Robert (Jamie) Munro
Ps. does that mean that if someone has a 1993 or earlier postcode DB
lying around, we can bulk load it into Free the Postcode?

Probably not, as I expect that Royal Mail make you sign a contract
with them before they give it to you, and that contract will almost
certainly restrict your rights beyond the default restrictions that
they get from database right.

Tom

[Lars Aronsson]

Post by Robert (Jamie) Munro
Ps. does that mean that if someone has a 1993 or earlier postcode DB
lying around, we can bulk load it into Free the Postcode?

Yes, it should be free. Or at least one from 1992 would have
become free at the end of December 31, 2007. Just like Project
Gutenberg, Wikisource and similar book digitization projects make
a point of moving as close as possible to the 70 year limit, by
scanning books by authors who died in 1937*, free data projects
should republish any 15 year old databases where the database
rights have expired.

However, you should make sure how the "database rights" were
defined in 1993 in your country and how the current law applies to
them. In many European countries, database rights were introduced
by a European Council Directive 96/9/EC of March 1996, still only
twelve years ago.

Wikipedia says**: "In the United Kingdom, it was introduced as
"The Copyright and Rights in Databases Regulations 1997" and came
into force on January 1, 1998." But how does that apply to
databases from 1993? Ask a U.K. jurist.

In Scandinavia, catalog rights (for printed catalogs) were
introduced in the copyright law of 1960 (Sweden) or 1961 (Denmark,
Norway), having a 10 year protection, which was later expanded to
15 years and served as inspiration for the European database
rights.

* e.g. http://en.wikisource.org/wiki/Wikisource:Scan_parties

** http://en.wikipedia.org/wiki/Database_right

[Stephen Gower]

Post by Robert (Jamie) Munro
The idea that
someone in around 100 years time will still have to struggle with the
license issues we are setting up now on my data really worries me

With your own data, you can make it PD (or the equivalent -
http://sam.zoy.org/wtfpl/ perhaps!) any time you choose of course.

[Jordan S Hatcher]

Post by Richard Fairhurst

I don't quite understand the difference between ODL-factual
and Public Domain.
I mean, what would be different if, instead of ODL-DB + ODL-factual,
we used ODL-DB + PD ???

This would certainly be an option. However, ODC-Factual is an explicit
grant of rights and is applicable in countries where there is no
formal concept of the public domain.

To clarify:

The Factual Information Licence is meant to cover the case of
Australia, where it is my understanding that factual information
collected together can be held to have a copyright (under the Telstra
case). Most other legal systems would not give copyright for a
telephone directory arranged in a alphabetical order. The FIL
basically says that:
-- This is factual data
-- I don't claim copyright over it
-- But if I have any rights, you can have them under a BSD/MIT style
licence.

The Database Licence is meant to operate over the database as a whole
and not apply directly to its contents, so that it could be used for
something like Freebase, which collects public domain info with GFDL
licensed Wikipedia content.

<http://freebase.com>

That way if you have contents with all sorts of different rights you
can let those rights govern those objects, and the DBL govern the
database as a whole.

You could use the CC Public Domain tool instead of the FIL.

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007

[Jordan S Hatcher]

Post by Richard Fairhurst

Post by Frederik Ramm
[...]
Why, exactly, does CC recommend CC0 even after they have thoroughly
looked at our situation, and on what basis does the OSMF board
reject the CC suggestion?

Creative Commons' position is this (summarised from an e-mail to OSMF
by John Wilbanks, head of Science Commons, to which CC has expressly

I can't of course speak for OSMF or their communications with SC, but
Science Commons has outlined their approach for Open Data in the
Protocol, which is a bit more explained in the FAQ:

Protocol:
<http://sciencecommons.org/projects/publishing/open-access-data-
protocol/>

FAQ:
<http://sciencecommons.org/resources/faq/database-protocol/>

See in particular:
"You used to recommend the use of Creative Commons licenses. Why did
you change?"

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007

[rob]

Post by Richard Fairhurst
OSMF disagrees significantly with this assessment of a contractual
approach. Commercial geodata (TeleAtlas, Navteq etc.) is protected
this way.

Has this been tested in court though? Or has anything equivalent to
this been tested in court?

Post by Richard Fairhurst
We also believe that the experience of free software/open
source licences is that enforcement is largely achieved by public
pressure: the GPL is enforced more through bad publicity for alleged
violators (or "bad guys") than by actual legal action.

Yes, but the GPL works because lawyers read it and having seen that
it's at least coherent enough to lead to a lawsuit tell their clients
to settle.

Post by Richard Fairhurst
OSMF believes that CC's position is essentially formed from their work
with scientific data, and that their recommended approach of "norms"
is laudable but less likely to be practical in the geodata market.

Yes I would agree with that. In particular if the contractual approach
is valid, non-copyleft Free/Open Geodata can be captured by
proprietary projects.

Keep up the amazingly thorough good work. :-)

- Rob.

[SteveC]

Post by rob

Post by Richard Fairhurst
OSMF disagrees significantly with this assessment of a contractual
approach. Commercial geodata (TeleAtlas, Navteq etc.) is protected
this way.

Has this been tested in court though? Or has anything equivalent to
this been tested in court?

So it's important to test in court....

Post by rob

Post by Richard Fairhurst
We also believe that the experience of free software/open
source licences is that enforcement is largely achieved by public
pressure: the GPL is enforced more through bad publicity for alleged
violators (or "bad guys") than by actual legal action.

Yes, but the GPL works because lawyers read it and having seen that
it's at least coherent enough to lead to a lawsuit tell their clients
to settle.

Now it isn't important... ?

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[rob]

Post by SteveC

Post by rob

Post by Richard Fairhurst
OSMF disagrees significantly with this assessment of a contractual
approach. Commercial geodata (TeleAtlas, Navteq etc.) is protected
this way.

Has this been tested in court though? Or has anything equivalent to
this been tested in court?

So it's important to test in court....

Post by rob

Post by Richard Fairhurst
We also believe that the experience of free software/open
source licences is that enforcement is largely achieved by public
pressure: the GPL is enforced more through bad publicity for alleged
violators (or "bad guys") than by actual legal action.

Yes, but the GPL works because lawyers read it and having seen that
it's at least coherent enough to lead to a lawsuit tell their clients
to settle.

Now it isn't important... ?

It's not how it looks officer, really... ;-)

I'm saying that the same effect may be in place in both examples:
reasonable-looking legal documents.

But I'm also saying that the reasonable-looking legal documents may
not have the same strength if they were actually tried in court.

With the GPL, the GPL has been upheld in court in Germany. So we have
some reason to be confident in it. (And one of the CC licences was
involved in a case in Portugal, so likewise CC).

Have the contracts that commercial geodata outfits use had similar
confirmation?

- Rob.

[tim]

Something that Etienne mentioned in IRC, and that I thought was worthy
of clarification, as it got me puzzling.

"whether this file is a database?
Loading Image...
"
and
"
if oceantiles_12.png is a database then perhaps this is also a
database: Loading Image... "

(ceantiles_12.png is read by png2tileinfo.pl that generates the
"oceantiles_12.dat" file as used by lowzoom.pl and close-areas.pl. to
make sea tiles afaik)

[Frederik Ramm]

Hi,

Post by Richard Fairhurst
The idea of storing an optional 'PD?' preference per user is an
interesting one and we'd welcome feedback as to whether there'd be the
demand for this. Effectively this would be requesting that OSMF, or
anyone else, creates a public domain database from your contributions.

I have always been meaning to do that some time. If I cannot convince
the whole project to "go PD", I would at least want to have a "PD
view" which is a subset of OSM data that contains only stuff not
tainted by a viral license.

This would be very hard to do externally as you need the full history
of everything, plus some automatic measure to determine wheter a
change by a non-PD user was "substantial". Tom Hughes is right in
saying that this is difficult but I think it is doable.

(With the current state of the TIGER import, about 90% of our data is
probably PD. Of course this will become less and less as TIGER data is
manually changed by non-PD users.)

I would very much like to avoid a split and branch in the data to form
a PD body and a non-PD body of data, especially as I hope to convince
more people to make the switch and I want the switch to also affect
the data they collected before they decided to PD it.

If, ultimately, one could query the same OSM database with an added
"license=pd" and would only get the unrestricted subset, I would be
a very happy man.

Bye
Frederik

[Frederik Ramm]

Hi,

Post by Richard Fairhurst
Creative Commons' position is this

[...]

Post by Richard Fairhurst
A contractual approach could work in theory, but is only binding on
those who sign it, and CC believes any "bad guys" wanting to find a
way around the licence would do so.
OSMF disagrees significantly with this assessment of a contractual
approach. Commercial geodata (TeleAtlas, Navteq etc.) is protected
this way.

I think it is incorrect to make this comparison. Commercial geodata
has a market value (the price at which it sells). If someone breaches
the contract he may be sued for "damages", i.e. the money lost to the
provider because of that breach.

But how is this going to work for us? For what damages are we going to
sue?

Post by Richard Fairhurst
We also believe that the experience of free software/open
source licences is that enforcement is largely achieved by public
pressure: the GPL is enforced more through bad publicity for alleged
violators (or "bad guys") than by actual legal action.

So the foundation sees this weak point about the damages, and says
that at least we're morally superior if someone steals our data, even
if we cannot do them any harm legally?

But isn't that exactly what the CC guys try to implement with their
CC0 stuff and the "protocol"? Saying that they expect attribution but
conceding that there's probably no legal handle for them to enforce
it?

I would hope that this is made clear to everyone. People still seem to
assume that we could go after violators with "lawsuits" but this seems
rather naive to me now.

Bye
Frederik

[Andy Robinson (blackadder)]

Sent: 04 February 2008 11:32 AM
To: Licensing and other legal discussions.
Subject: Re: [OSM-legal-talk] Progressing OSM to a new data Licence regime
Hello,
Few clarifications and questions about use cases.
If I distribute web mapping of my special company data and OSM, I
don't have to give my data back to OSM, right? In other words, there's
no requirement to distribute, but also, if the map images are
distributed, then it doesn't have to be under the same licence.
If I zip up the shapefiles used, and put them on my server for folks
to download, then these would come under the same licence and be able
for OSM to benefit from them?
How about putting my propriety data and OSM together locked within an
in-car sat nav system. Would this be classed as distribution of the
database? What should my company do in this case?
Tim

Please note that if it takes a while for an OSMF response to questions its
only because we are collating the thoughts and adding additional generic
Q&A's to the FAQ. We haven't forgotten about you. Hopefully we can create
common responses that cover generic questions. As new Q&A's reach the wiki
we'll confirm via the list.

Cheers

Andy

[Frederik Ramm]

Hi,

I would like to know more about our talks with the CC folks.
After all, the people at Creative Commons have a lot of respect from
the world-wide community and I read on the wiki page that:

"... We would have liked Creative Commons to have offered a
sharealike/attribution data licence that we could adopt. However,
their position is that map data should be dedicated to the public
domain, ..., the OSMF board does not believe this route is in the
project's best long term interests."

So they actually listened to us and to the doubts we (some of us)
have about CC0, but still they take the position that map data should
be CC0. I am sure they didn't just say so on a whim, they must have
had good and solid reasons for that, and the OSMF must have even
better and more solid reasons for rejecting their suggestion.

I mean, CC are not just anybody, they have played a very important
part in getting viral licenses accepted in the non-software area, so
they themselves must have very good reasons for suggesting CC0.

If our only reasons against CC0 are that "we might lose AND
data" (which isn't even clear!) or "we might lose MASSGIS data" or
"we might lose South London", then I'd say that is not enough...

Why, exactly, does CC recommend CC0 even after they have thoroughly
looked at our situation, and on what basis does the OSMF board reject
the CC suggestion?

(If the board's deliberations on the subject are documented somewhere
then just point me to that and I'll read up on the arguments.)

Bye
Frederik

[MJ Ray]

Post by Frederik Ramm
Why, exactly, does CC recommend CC0 even after they have thoroughly
looked at our situation, and on what basis does the OSMF board reject
the CC suggestion?

Please cross-post any such explanation/links to legal-talk.

I wish you luck on this, but after bad experiences trying to get any
definitive information on why CC holds particular opinions during the
Debian-CC working group, I don't hold out much hope of transparency
from CC. It seems to be a self-perpetuating black box, common of so
many US-originated foundations, with all the problems that involved.
OSMF seems better than that, so I'm biased towards OSMF in any
disagreement and I feel that most readers here should be too. If
you're backing CC, do you know why?

CC's licences are pretty good, but not as brilliant as the hype IMO.
Maybe their advice will or won't work for the OSM. Keep an open mind.

Related: shall we ask debian-legal about the osm-legal-talk thread?
It would be good to have OSM data in debian and similar without problem.

Regards,

[Iván Sánchez Ortega]

Post by MJ Ray
CC's licences are pretty good, but not as brilliant as the hype IMO.
Maybe their advice will or won't work for the OSM. Keep an open mind.
Related: shall we ask debian-legal about the osm-legal-talk thread?
It would be good to have OSM data in debian and similar without problem.

IMHO:

- CC deals with licenses for art.
- Debian deals with licenses for software.
- Geographical information is neither art or software.
--
----------------------------------
Iv?n S?nchez Ortega <ivansanchez at escomposlinux.org>

Un ordenador no es un televisor ni un microondas, es una herramienta compleja.
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[MJ Ray]

Post by Iván Sánchez Ortega

Post by MJ Ray
Related: shall we ask debian-legal about the osm-legal-talk thread?
It would be good to have OSM data in debian and similar without problem.

- CC deals with licenses for art.
- Debian deals with licenses for software.
- Geographical information is neither art or software.

This is an old misunderstanding, similar to saying "I don't care about
newsprint licensing because my writing is not newsprint".

In short, geographical data is neither art or software, but can be
contained in both, so using free software licensing would be good.

Hope that explains,

[rob]

Post by Iván Sánchez Ortega

Post by MJ Ray
CC's licences are pretty good, but not as brilliant as the hype IMO.
Maybe their advice will or won't work for the OSM. Keep an open mind.
Related: shall we ask debian-legal about the osm-legal-talk thread?
It would be good to have OSM data in debian and similar without problem.

- CC deals with licenses for art.
- Debian deals with licenses for software.
- Geographical information is neither art or software.

"Software" can mean any collection of computer data (DVDs are
"software" for example), although the meaning of "software" most
people use is "executable programs".

If someone competent from Debian Legal could gather up notes on the
licence that might be very useful. Debian Legal are very experienced
at identifying issues with licences, and the issues they identify are
often of general interest.

From past experience my advice would be to take notice of any issues
Debian Legal identify that are of concern to OSM, and to ignore any
issues that are of interest only to Debian Legal. In particular I
wouldn't worry about DFSG-compliance just for the sake of it.

- Rob.

[rob]

Post by MJ Ray
I wish you luck on this, but after bad experiences trying to get any
definitive information on why CC holds particular opinions during the
Debian-CC working group, I don't hold out much hope of transparency
from CC.

I have never had any problems. Most recently I received public
responses to a number of questions and criticisms during the review of
the 3.0 licences, and at least one of my suggestions made it into one
of the final licences.

CC can't always answer questions because they might have legal effects.

- Rob.

[SteveC]

Post by SteveC
? Stage 4 - Remove all data from those who do not respond or
respond negatively (the hard bit)

Steve,

First, as the email said twice, please don't cc talk.

how do we avoid the situation where e.g. someone who disagrees the
new license has run a bot over all of Cambridge to tweak things (as
has indeed
happened to many of the ways) or who has 'tidied up' bits of my
mapping so all my surveying is now labelled with their name. Does
all of my mapping of Cambridge get deleted because someone has later
modified my work in a trivial way? (Conversely, can I just select a
big area, and add a new tag to transfer the data to my name and
cause someone who doesn't agree the new license to be retained?)

It would have to be a clean chain of all editors agreeing, and the
last timewise editor to disagree is the edit (and those thereafter)
that would be thrown away.

But it's slightly hypothetical at this stage as we have to clear
stages 1-3.

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[SteveC]

Post by SteveC

how do we avoid the situation where e.g. someone who disagrees the
new license has run a bot over all of Cambridge to tweak things
(as has indeed
happened to many of the ways) or who has 'tidied up' bits of my
mapping so all my surveying is now labelled with their name. Does
all of my mapping of Cambridge get deleted because someone has
later modified my work in a trivial way? (Conversely, can I just
select a big area, and add a new tag to transfer the data to my
name and cause someone who doesn't agree the new license to be
retained?)

It would have to be a clean chain of all editors agreeing, and the
last timewise editor to disagree is the edit (and those thereafter)
that would be thrown away.

This sounds like a nightmare: I could lose weeks of work because
someone who fails to reply played with Potlatch once for a few
minutes and then vanished.

You have a better idea? :-)

Ultimately, I think if we get consensus the vast majority of people
will be happy to switch.

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[Tom Chance]

Hello,

Post by SteveC

Post by SteveC

how do we avoid the situation where e.g. someone who disagrees the
new license has run a bot over all of Cambridge to tweak things
(as has indeed
happened to many of the ways) or who has 'tidied up' bits of my
mapping so all my surveying is now labelled with their name. Does
all of my mapping of Cambridge get deleted because someone has
later modified my work in a trivial way? (Conversely, can I just
select a big area, and add a new tag to transfer the data to my
name and cause someone who doesn't agree the new license to be
retained?)

It would have to be a clean chain of all editors agreeing, and the
last timewise editor to disagree is the edit (and those thereafter)
that would be thrown away.

This sounds like a nightmare: I could lose weeks of work because
someone who fails to reply played with Potlatch once for a few
minutes and then vanished.

You have a better idea? :-)

No, but it's a bit scary without having any good idea of the number of
people who won't respond. Here are two possibly rubbish ideas:

- Do a special render of the planet indicating the density of users, e.g.
deep red means lots of different people have been editing an area. This
would at least give people an idea of how "complex" their data is;

- Do a trial email shot asking every user to confirm that they will
consider the issue, or some such thing, to get an idea of the response
rate;

What is the suggested time between the email and the delete steps, by the
by? You obviously need a deadline but I'd need a good pub trip to calm me
down if I found out all my data is wiped, I start fixing it and then a week
or two later the key person finally responds so wasting all my effort ;-)

Kind regards,
Tom

[Axel Marquette]

Post by Tom Chance

Post by SteveC

This sounds like a nightmare: I could lose weeks of work because
someone who fails to reply played with Potlatch once for a few
minutes and then vanished.

You have a better idea? :-)

No, but it's a bit scary without having any good idea of the number of

I'm just a french law student, not an accomplished jurist yet, but
could'nt you use the concept of "silence equals consent". When
publishing the next license, just include a clause saying that as
long as users do not explicitly refuse to comply, their silence is
being considered as acceptance of the new terms and their data is
distributed under these terms. Adding a deadline of one year would
allow OSM to definitively "lock" the data under the new license to
prevent a zombi coming back ten years from now to claim a refusal.
The question this poses though, is wether or not the current legal
terms allow OSM to undergo such a procedure on behalf of users and
their accounts.

Regards, Axel.

[Robert (Jamie) Munro]

Axel Marquette wrote:
| Le 4 f?vr. 08 ? 19:22, Tom Chance a ?crit :
|
|>>> This sounds like a nightmare: I could lose weeks of work because
|>>> someone who fails to reply played with Potlatch once for a few
|>>> minutes and then vanished.
|>> You have a better idea? :-)
|> No, but it's a bit scary without having any good idea of the number of
|> people who won't respond. Here are two possibly rubbish ideas:
|
| I'm just a french law student, not an accomplished jurist yet, but
| could'nt you use the concept of "silence equals consent". When
| publishing the next license, just include a clause saying that as
| long as users do not explicitly refuse to comply, their silence is
| being considered as acceptance of the new terms and their data is
| distributed under these terms. Adding a deadline of one year would
| allow OSM to definitively "lock" the data under the new license to
| prevent a zombi coming back ten years from now to claim a refusal.
| The question this poses though, is wether or not the current legal
| terms allow OSM to undergo such a procedure on behalf of users and
| their accounts.

I'm still think that the foundation owns everyone's data already. When
you sign up, it says:
"By creating an account, you agree that all work uploaded to
openstreetmap.org and all data created by use of any tools which connect
to openstreetmap.org is to be licensed under this Creative Commons
license (by-sa)."

I read that as anything I give to OSM, they will license back to me (and
everyone else) under CC-by-sa. It can't possibly mean that I am
licensing it to them under CC-by-sa, because they don't even remotely
comply with the 'by' part of that license.

Robert (Jamie) Munro

[Tom Hughes]

In message <47A7AD71.4050301 at arjam.net>

Post by Robert (Jamie) Munro
I'm still think that the foundation owns everyone's data already. When
"By creating an account, you agree that all work uploaded to
openstreetmap.org and all data created by use of any tools which connect
to openstreetmap.org is to be licensed under this Creative Commons
license (by-sa)."
I read that as anything I give to OSM, they will license back to me (and
everyone else) under CC-by-sa. It can't possibly mean that I am
licensing it to them under CC-by-sa, because they don't even remotely
comply with the 'by' part of that license.

How on earth can you read that statement to suggest a transfer of
ownership? I'm not disagreeing that it's probably badly worded, but
equally I don't think either of your suggestions is what was intended
and it certainly can't possibly be a transfer without explicitly
saying so.

The intention I believe was to allow the "project" to store the
data on your behalf and make it available to people on a CC-BY-SA
basis. The fact that the project has itself been outside the terms
of that license is neither here nor there - that is after all one
of the things we are trying to fix!

I'm not quite sure why you think the project is violating BY though
as SA is the main problem area?

Tom

[Rob Myers]

Post by Robert (Jamie) Munro
I'm still think that the foundation owns everyone's data already. When
"By creating an account, you agree that all work uploaded to
openstreetmap.org and all data created by use of any tools which connect
to openstreetmap.org is to be licensed under this Creative Commons
license (by-sa)."
I read that as anything I give to OSM, they will license back to me (and
everyone else) under CC-by-sa. It can't possibly mean that I am
licensing it to them under CC-by-sa, because they don't even remotely
comply with the 'by' part of that license.

It is marginally possible to read the terms to mean that, but it is a
less likely reading than the expected one, that you are licencing the
data to OSM under BY-SA.

It might be worth modifying the Ts&Cs to avoid any potential ambiguity.

- Rob.

[Michael Collinson]

Post by Rob Myers

Post by Robert (Jamie) Munro
I'm still think that the foundation owns everyone's data already. When
"By creating an account, you agree that all work uploaded to
openstreetmap.org and all data created by use of any tools which connect
to openstreetmap.org is to be licensed under this Creative Commons
license (by-sa)."
I read that as anything I give to OSM, they will license back to me (and
everyone else) under CC-by-sa. It can't possibly mean that I am
licensing it to them under CC-by-sa, because they don't even remotely
comply with the 'by' part of that license.

It is marginally possible to read the terms to mean that, but it is a
less likely reading than the expected one, that you are licencing the
data to OSM under BY-SA.
It might be worth modifying the Ts&Cs to avoid any potential ambiguity.
- Rob.

And also "OSM" and "OSMF" are two very different things. OSM does
not exist as a formal legal entity and openstreetmap.org is just a
web site name, so I don't see how either can be a Licensor with a big
L unless there is some appropriate common law in jurisdictions that
support that form of law. The OSM Foundation is a formal legal
entity but has nothing to do with the current license, it does not
assert rights and no one has assigned any rights to it. In fact, as
the license currently stands,
http://wiki.openstreetmap.org/index.php/OpenStreetMap_License, there
is no explicit definition of who the licensor is at all. Certainly
something that will addressed by any new license!

Mike
Stockholm

[Robert (Jamie) Munro]

Rob Myers wrote:
| Robert (Jamie) Munro wrote:
|
|> I'm still think that the foundation owns everyone's data already. When
|> you sign up, it says:
|> "By creating an account, you agree that all work uploaded to
|> openstreetmap.org and all data created by use of any tools which connect
|> to openstreetmap.org is to be licensed under this Creative Commons
|> license (by-sa)."
|>
|> I read that as anything I give to OSM, they will license back to me (and
|> everyone else) under CC-by-sa. It can't possibly mean that I am
|> licensing it to them under CC-by-sa, because they don't even remotely
|> comply with the 'by' part of that license.
|
| It is marginally possible to read the terms to mean that, but it is a
| less likely reading than the expected one, that you are licencing the
| data to OSM under BY-SA.
|
| It might be worth modifying the Ts&Cs to avoid any potential ambiguity.

My point was that we may be able to exploit the ambiguity, otherwise we
might have to throw away half the data when we change license.

Long term, we can avoid the ambiguity by making it clear that all data
belongs to OSM, whoever that is (probably the foundation), then we can
let the foundation change the license whenever they need to.

Robert (Jamie) Munro

[Frederik Ramm]

Hi,

Post by Robert (Jamie) Munro
Long term, we can avoid the ambiguity by making it clear that all data
belongs to OSM, whoever that is (probably the foundation), then we can
let the foundation change the license whenever they need to.

This is undesirable because it would lead to distrust ("Ah, look what
Fred's doing here, I am sure he aims at being elected as the
foundation chairman next term, then he'll pull in all his evil PD
friends and drop the viral elements of our license! We must stop this
sinister endeavour now...").

People would call for a myriad of checks and balances and democratic
processes in the foundation to make sure that bad things don't happen,
and this would bog the foundation down to the point where nothing can
be achieved.

Also, the option of easy license change in the future would make it
difficult for commercial users to rely on our data.

What we could do is grant the foundation the right to dual-license the
data, either globally or to specific (paying?) users. But the license
that we now choose should remain fixed.

Bye
Frederik

[Jordan S Hatcher]

My apologies but the DBL text seems to be mis-formatted -- probably
as a result of my last wordpress update. It should be fixed now, but
just in case the downloads offer the canonical version.

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007

[Gervase Markham]

Post by Robert (Jamie) Munro
Long term, we can avoid the ambiguity by making it clear that all data
belongs to OSM, whoever that is (probably the foundation), then we can
let the foundation change the license whenever they need to.

This would be a copyright assignment, which would be a large change in
the relationship between the participants and the project. As far as I
understand it, it hasn't even been proposed.

Gerv

[Jordan S Hatcher]

Post by Frederik Ramm
What we could do is grant the foundation the right to dual-license the
data, either globally or to specific (paying?) users. But the license
that we now choose should remain fixed.

Post by Robert (Jamie) Munro
Long term, we can avoid the ambiguity by making it clear that all data
belongs to OSM, whoever that is (probably the foundation), then we can
let the foundation change the license whenever they need to.

This would be a copyright assignment, which would be a large change in
the relationship between the participants and the project. As far as I
understand it, it hasn't even been proposed.

I'd like to note that, just to clarify, factual data is generally not
copyrightable, and so there would be nothing to assign. Applying a
copyright licence to something that isn't copyrightable *might create
a contract but wouldn't create a copyright where one doesn't exist.

Post by Frederik Ramm
It depends.
It depends on your view over the "copyrightability" of individual
pieces of
data.
If a singular piece of data is "copyrightable", then the 15-yeard-
old database
right expires, but the individual copyrights do not.

A "singular piece of data" would not come under the database right
either. Database rights arise when there has been substantial
investment in obtaining verifying or presenting the contents of a
database. One piece of data, or a entire set of data without a
database doesn't get database rights.

Post by Frederik Ramm
If a singular piece of data is not "copyrightable", then the data
is basically
in the public domain.

It is without copyright, but depending on the data (not as relevant
for the geodata community admittedly) it could not be free to use --
think about personal data.
So, within the context of the ODC-DbL / FIL combo:

-- Factual data comes under the FIL and is free to use
-- The database as a whole comes under the ODC-DbL

The DbL/FIL is a "leaky ship" in that:

-- Copyright probably protects copying (and other restricted acts)
the entire database and (to varying degrees only parts of the
database) but doesn't say much of anything about taking all the data
and creating a new database
-- Database rights in Europe protect extracting and re-utlising
substantial amounts of the data apart from the database (so sucking
out all the data and creating a new database).
-- Outside of Europe, you are likely to rely on contract and other
law (possibly unfair competition claims). Contract claims are one-to-
one (in personam) and not one-against-everyone (in rem). This means
that it is harder to enforce your claims against people who received
the (uncopyrightable) data from someone who breached the contract.

In the protocol, FAQ, and other venues, Science Commons argues:

-- People think that copyright protects actions with databases that
it doesn't (such as getting all the data out and creating a new
database)
-- What copyright does and doesn't protect in a database is really
tricky, even for IP experts, and so making the public try to parse
all the minute legal questions is overly burdensome and expensive
both in money (lawyer fees), time (spent wondering about the rights),
and lost opportunity (not using the database because of all the hassle)
-- Database rights legislation is bad policy and bad law and
shouldn't be used. See the European Commission's own review:

"First evaluation of Directive 96/9/EC on the legal protection of
databases"
<http://europa.eu/eur-lex/pri/da/oj/dat/2004/l_195/
l_19520040602da00160025.pdf>

"The economic impact of the ?sui generis? right on database
production is unproven. Introduced to stimulate the production of
databases in Europe, the new instrument has had no proven impact on
the production of databases. ***
Is ?sui generis? protection therefore necessary for a thriving
database industry? The empirical evidence, at this stage, casts
doubts on this necessity.
[They then go on to discuss repealing it, but conclude that it is
easier to leave it in place]"

-- Database rights are limited to Europe and so do not have worldwide
applicability

--Contract creates a barrier of opportunity and transaction costs
similar to copyright [above]. In addition, it is harder to enforce
against third parties after breach and so offers only limited
protection.

There has been some discussion of commercial data providers on this
list. I'm no expert in their practices, but they rely on:
-- IP rights such as copyright and database rights
-- contracts that prohibit re-distribution
**-- technical protection measures, passwords, that sort of thing
**-- providing value-added services that are clearly protected by
other rights
**-- marketing, branding, trade marks (and so on) that identify them
as a quality source of information
**-- better services than other providers

I think it's important to point out that commercial companies
protecting their data do not allow their users to share it, and so
most of their protection is based around this. By allowing others to
share the work freely, you lose many of these avenues of protection
(like technical protection measures, for example). So the model is
different. Where others have the same data (say US case law and
Westlaw versus Lexis), then they package it with other material and
brand themselves as the best place to go.

The SC point is that all this sort of stuff can be a real pain, and
isn't what you are really doing is wanting to create and manipulate
factual data? Why spend all the time on this when the innovation
happens in what you can do with the data, and not with trying to
protect the data in the first place.

The above is a generalization of the law and is not legal advice as
the picture is much more complex than above. I am actually a lawyer,
but I am not YOUR lawyer (if I was we'd have a contract for services
and you'd owe me a hefty retainer!)

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007

[Frederik Ramm]

Hi,

I might be getting something wrong here, but Jordan's posting, to
me, is the most convincing statement *against* the kind of license
that the foundation has endorsed. It is a bit difficult for me to
distinguish between the parts of the message where he says what HE
thinks and where he says what the SC (science commons) people think,
[...]

Post by Jordan S Hatcher
-- Outside of Europe, you are likely to rely on contract and other
law (possibly unfair competition claims). Contract claims are one-to-
one (in personam) and not one-against-everyone (in rem). This means
that it is harder to enforce your claims against people who received
the (uncopyrightable) data from someone who breached the contract.

[...] (paraphrasing SC here:)

Post by Jordan S Hatcher
-- What copyright does and doesn't protect in a database is really
tricky, even for IP experts, and so making the public try to parse
all the minute legal questions is overly burdensome and expensive
both in money (lawyer fees), time (spent wondering about the rights),
and lost opportunity (not using the database because of all the hassle)
-- Database rights legislation is bad policy and bad law and

Let me add some exclamation marks here:

* BAD LAW
* SHOULD NOT BE USED.
* EUROPEAN COMMISSION DISCUSSING TO REPEAL IT

(and we are discussing to base our license on it?)

Post by Jordan S Hatcher
-- Database rights are limited to Europe and so do not have
worldwide
applicability

This means that anyone in the US can kick our ass. It has been argued
that some data "donations" like MASSGIS or AND would not have taken
place if we had been PD because these people want attribution or have
reservations about possible competitors using their data; but how
will these people react if we choose a license that is completely
toothless in a jurisdiction like the US? What will they say wen a
seasoned IP lawyer like Jordan tells them: "Well you can give your
data to OSM but you must know that there's basically nothing they can
do if a US company breaches the license/contract"?

Post by Jordan S Hatcher
--Contract creates a barrier of opportunity and transaction costs
similar to copyright [above]. In addition, it is harder to enforce
against third parties after breach and so offers only limited
protection.

And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

Post by Jordan S Hatcher
There has been some discussion of commercial data providers on this

And he goes on to completely destroy the OSMF position (without
explicitly referring to it) that Richard Fairhurst recently
summarized as "OSMF disagrees significantly with this assessment of a
contractual approach. Commercial geodata (TeleAtlas, Navteq etc.) is
protected this way.", arguing that we're in a very different
situation from commercial providers.

Post by Jordan S Hatcher
The SC point is that all this sort of stuff can be a real pain, and
isn't what you are really doing is wanting to create and manipulate
factual data? Why spend all the time on this when the innovation
happens in what you can do with the data, and not with trying to
protect the data in the first place.

After reading this, I am more convinced than ever that the Open Data
Commons DbL/FIL can NOT be the way forward for us. This is all just
creating an enormous cloud of legalese, creating more uncertainties,
and putting European users at a huge disadvantage compared to users
in other jurisdictions.

How on earth did the Foundation come to recommend ODC DbL/FIL when
even one of its two inventors has such an enormous list of caveats?

Everything that is being said about viral licenses and forcing users
to do this and that and making sure that something else does not
happen is just a pipe dream, and the whole license debate a huge
waste of time. Factual data is always free, and the best we will ever
be able to achieve is to set MORAL guidelines - we would like our
users to do this and that, with a possible enforceable component in a
small number of jurisdictions and for the time being.

Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

CC0 now!

Bye
Frederik

[Tom Hughes]

In message <BFF7BF64-3F1F-4A2F-A097-961DBCCA0188 at remote.org>

Post by Frederik Ramm
Hi,

Post by Jordan S Hatcher
-- Database rights legislation is bad policy and bad law and

* BAD LAW
* SHOULD NOT BE USED.
* EUROPEAN COMMISSION DISCUSSING TO REPEAL IT
(and we are discussing to base our license on it?)

Post by Jordan S Hatcher
-- Database rights are limited to Europe and so do not have
worldwide
applicability

This means that anyone in the US can kick our ass. It has been argued
that some data "donations" like MASSGIS or AND would not have taken
place if we had been PD because these people want attribution or have
reservations about possible competitors using their data; but how
will these people react if we choose a license that is completely
toothless in a jurisdiction like the US? What will they say wen a
seasoned IP lawyer like Jordan tells them: "Well you can give your
data to OSM but you must know that there's basically nothing they can
do if a US company breaches the license/contract"?

Which is why the license also uses contract to help where database
right is not available.

Post by Frederik Ramm

Post by Jordan S Hatcher
--Contract creates a barrier of opportunity and transaction costs
similar to copyright [above]. In addition, it is harder to enforce
against third parties after breach and so offers only limited
protection.

And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

I believe that is not true everywhere - in Europe that is generally
the case but the US allows for punitive damages as well as compensatory
damages I think.

Post by Frederik Ramm
Everything that is being said about viral licenses and forcing users
to do this and that and making sure that something else does not
happen is just a pipe dream, and the whole license debate a huge
waste of time. Factual data is always free, and the best we will ever
be able to achieve is to set MORAL guidelines - we would like our
users to do this and that, with a possible enforceable component in a
small number of jurisdictions and for the time being.
Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

The problem is that we know that if we go down that route we will
almost certainly loose (a) a lot of contributors and (b) a lot of
existing data.

We know this because a number of people have stood up and said they
will withdraw their data if no viral style protection is offered to
ensure it stays free.

Tom

[Frederik Ramm]

Hi,

Post by Tom Hughes
Which is why the license also uses contract to help where database
right is not available.

Post by Frederik Ramm

Post by Jordan S Hatcher
--Contract creates a barrier of opportunity and transaction costs
similar to copyright [above]. In addition, it is harder to enforce
against third parties after breach and so offers only limited
protection.

"offers only limited protection". So we're doing all this enormous
work and forcing people to understand all this license stuff just for
a little bit of limited protection that will protect uns only against
the well-meaning.

Post by Tom Hughes

Post by Frederik Ramm
And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

I believe that is not true everywhere - in Europe that is generally
the case but the US allows for punitive damages as well as
compensatory
damages I think.

I don't know. We should find out, because if I am right then
"contract" is worth nothing to us. (As opposed to commercial providers!)

Post by Tom Hughes

Post by Frederik Ramm
Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

The problem is that we know that if we go down that route we will
almost certainly loose (a) a lot of contributors and (b) a lot of
existing data.

I won't be held hostage by them. If it turns out that they're
clinging to some pipe dream of being able to enforce some uses of the
data, leading to a situation where the whole project suffers from
unnecessary complex usage regulations that can and will be ignored by
anyone with a sufficiently big interest, putting the "honest" users
at a disadvantage, then I'll rather purge the database of that
tainted data now than in two years' time.

It is not too late to be honest to these people and say: Look, we've
given you the illusion of having legal clout in the matter, we've
given you the illusion of you having a copyright on facts, but it's
not going to stand up in court anyway so we're dropping this.

Bye
Frederik

[SteveC]

Post by Frederik Ramm
Hi,

Post by Tom Hughes
Which is why the license also uses contract to help where database
right is not available.

Post by Frederik Ramm

Post by Jordan S Hatcher
--Contract creates a barrier of opportunity and transaction costs
similar to copyright [above]. In addition, it is harder to enforce
against third parties after breach and so offers only limited
protection.

"offers only limited protection". So we're doing all this enormous
work and forcing people to understand all this license stuff just for
a little bit of limited protection that will protect uns only against
the well-meaning.

Well... it's not like the current situation is any better for a start
right?

Have a bit of patience :-)

Post by Frederik Ramm

Post by Tom Hughes

Post by Frederik Ramm
And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

Jordan can you confirm this?

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[A Morris]

Post by Frederik Ramm
And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

Surely if someone breaches contract you would sue them to, well, stop
breaching the contract?
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[Tom Hughes]

In message <40e8bb4d0802060319t46c73b2bw92b70f9651c8f8fa at mail.gmail.com>

Post by A Morris

Post by Frederik Ramm
And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

Surely if someone breaches contract you would sue them to, well, stop
breaching the contract?

Injunctive relief is the other option, yes.

Tom

[Frederik Ramm]

Hi,

Post by Tom Hughes

Post by A Morris
Surely if someone breaches contract you would sue them to, well, stop
breaching the contract?

I don't know if this is so easy. If someone breaches a contract, the
normal thing to happen is that the other side loses their contractual
obligation. Normal contracts are "I do this for you if you do that
for me", and if one side doesn't to their part then the other side
stops doing theirs, and if any monetary damage arises you can sue for
damages.

Post by Tom Hughes
Injunctive relief is the other option, yes.

None of the "common reasons for restraining orders" on http://
en.wikipedia.org/wiki/Injunction would apply in our case but I'd be
happy to hear from someone with a legal background.

As for the punitive damages mentioned by Tom, http://en.wikipedia.org/
wiki/Punitive_damages says that "punitive damages are awarded only in
special cases, [...] Punitive damages cannot generally be awarded in
contract disputes."

I'm not a lawyer as you know, and I know that in court anything is
possible, but all this sounds to me as if the hopes of ever getting
more than US$ 0.00 of damages out of someone who violates our
contract are rather slim indeed. In fact, I am close to accuse anyone
presenting this as a working way to enforce the license ("well where
there's no database law the license works as a contract, yippie,
problem solved!") of demagogy, or at least spreading misinformation.

Bye
Frederik

[Jordan S Hatcher]

Post by Frederik Ramm
Hi,
I might be getting something wrong here, but Jordan's posting, to
me, is the most convincing statement *against* the kind of license
that the foundation has endorsed. It is a bit difficult for me to
distinguish between the parts of the message where he says what HE
thinks and where he says what the SC (science commons) people think,

The last half where I outline SC's position is, well, their position
and not mine. It is available in their protocol and FAQ and in other
communications (such as email discussions).

I personally like the DbL/FIL and think that it is a good licence
that accomplishes what it is intended -- creating a constitution for
data sharing with a share alike provision within the context of

-- a free/open approach to data
-- the legal tools available

I personally am neutral on a preference between the two and think
that it would be wholly inappropriate for me to recommend one or the
other to OSM. I think that anyone wanting to use one of the
approaches should pick the one that best suits their needs.

Post by Frederik Ramm
[...]

Post by Jordan S Hatcher
-- Outside of Europe, you are likely to rely on contract and other
law (possibly unfair competition claims). Contract claims are one-to-
one (in personam) and not one-against-everyone (in rem). This means
that it is harder to enforce your claims against people who received
the (uncopyrightable) data from someone who breached the contract.

[...] (paraphrasing SC here:)

Post by Jordan S Hatcher
-- What copyright does and doesn't protect in a database is really
tricky, even for IP experts, and so making the public try to parse
all the minute legal questions is overly burdensome and expensive
both in money (lawyer fees), time (spent wondering about the rights),
and lost opportunity (not using the database because of all the hassle)
-- Database rights legislation is bad policy and bad law and

* BAD LAW
* SHOULD NOT BE USED.
* EUROPEAN COMMISSION DISCUSSING TO REPEAL IT
(and we are discussing to base our license on it?)

The licence is not "based on" the EU database directive. It uses it,
just like copyright, because it is an available way to protect the
database and its contents. To *not use an available legal tool to
accomplish a certain goal (share alike for data) doesn't make sense
to me. I think Licences are a tool to accomplish a goal, not a
policy statement against database rights.

Science Commons I think it is fair to say doesn't like database
rights as a policy and advocate against it, and so don't think that
people should use it in their licences. So for them, licences should
make this policy statement.

Also note that the EU's review was based more on the law not
encouraging an explosive growth in database companies in the EU. They
found on balance that they will retain it.

Which, brings me to another point. Lots of people think aspects of
copyright law are bad law and bad policy, but that doesn't stop them
from using a CC licence or the GPL, both based on copyright.
Advocacy is different from licensing.

Post by Frederik Ramm

Post by Jordan S Hatcher
-- Database rights are limited to Europe and so do not have
worldwide
applicability

This means that anyone in the US can kick our ass. It has been argued
that some data "donations" like MASSGIS or AND would not have taken
place if we had been PD because these people want attribution or have
reservations about possible competitors using their data; but how
will these people react if we choose a license that is completely
toothless in a jurisdiction like the US? What will they say wen a
seasoned IP lawyer like Jordan tells them: "Well you can give your
data to OSM but you must know that there's basically nothing they can
do if a US company breaches the license/contract"?

See my post -- the licence is not based only on EU database rights,
and copyright could protect the whole database. I don't think the
licence is "completely toothless" in the US, only that it has
different enforcement issues. How enforceable it is, is one of the
questions we'd hoped would be addressed by feedback in the beta stage.

Post by Frederik Ramm

Post by Jordan S Hatcher
There has been some discussion of commercial data providers on this

And he goes on to completely destroy the OSMF position (without
explicitly referring to it) that Richard Fairhurst recently
summarized as "OSMF disagrees significantly with this assessment of a
contractual approach. Commercial geodata (TeleAtlas, Navteq etc.) is
protected this way.", arguing that we're in a very different
situation from commercial providers.

They just have other ways that complement their contracts. I don't
think that it "completely destroys" other arguments. You can still
have a contract and still enforce that contract. You can use other
rights as well. It's just important to keep in mind the differences
in approaches.

Post by Frederik Ramm

Post by Jordan S Hatcher
The SC point is that all this sort of stuff can be a real pain, and
isn't what you are really doing is wanting to create and manipulate
factual data? Why spend all the time on this when the innovation
happens in what you can do with the data, and not with trying to
protect the data in the first place.

After reading this, I am more convinced than ever that the Open Data
Commons DbL/FIL can NOT be the way forward for us. This is all just
creating an enormous cloud of legalese, creating more uncertainties,
and putting European users at a huge disadvantage compared to users
in other jurisdictions.

We wrote the DbL/FIL to be simple and readable, and I think it is. I
completely disagree that:

-- the DbL/FIL has to be complex.
-- that EU users are at "an enormous disadvantage"

I should note that ANY licensing approach when compared to a public
domain approach is by definition more complex! That doesn't mean that
it has to be at the level of complexity that no one can use it.

Post by Frederik Ramm
CC0 now!

I know I'm biased (I helped write it too), but check out the Public
Domain Dedication and Licence instead:

<http://www.opendatacommons.org/odc-public-domain-dedication-and-
licence/>

Thanks!

~Jordan


____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007

[bvh]

Post by Frederik Ramm
Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

I don't get it : you go on about how license such and such is
possibly unenforceable and then you propose moral guidelines
that are 100% guaranteed not enforceable. I fail to see progress.

For me personally a viral license is the best way to express
these moral guidelines.

I do not want a commercial entity to use my work without proper
compensation : I accept payment either in cash (not going to happen)
or in contributions from said entity to the project I want to see
succeed (OSM if that is not clear)

Any license is difficult to enforce for an individual like me,
especially in different jurisdictions.
But by putting a license on my work at least I signal the world that
I have some intentions and come the day I feel slighted, at least
I can do an appeal to morality (and net outrage). If I put my
work in PD then I have absolutly no moral ground to condemn
anyone doing things I'd rather not see.

cu bart

[Frederik Ramm]

Hi,

Post by bvh

Post by Frederik Ramm
Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

I don't get it : you go on about how license such and such is
possibly unenforceable and then you propose moral guidelines
that are 100% guaranteed not enforceable. I fail to see progress.

Well my position is the enlightened one: We can't enforce anything,
so let's be honest, admit that we cannot enforce anything, and tell
people what we would like to do them, knowing full well that if
anyone does not comply, well, he doesn't.

Pushing a viral license in full knowledge that it is unlikely to work
against those who chose to neglect it, is lying to the community:
Giving the community the illusion of legal power, and even a hunch of
a promise that you will go after the bad guys.

What you say is right; a license, even if not enforceable, does
express certain values or wishes. But in my eyes this is just
succumbing to wishful thinking ("I might sue them..."). Yeah you
might. But for this infinitesimally small chance of some time perhaps
taking someone to court, you weigh down your contribution with a
license that creates tons of questions, is unfair (because it has
much greater legal power in Europe than elsewhere), and wastes
everbody's time in dealing with it.

Someone brought up 80n's example of how in tiles at home, we actually
use a big PNG image with one pixel for each Level-12 tile as a
database, telling us which tiles are land tiles and which are sea
tiles. So there's a database for you; at the same time, we say that
images created from OSM data (mashups etc) are not databases in the
sense of the license. This is one of, I'm sure, many points that will
never be solved clearly and properly.

Bye
Frederik

[SteveC]

Post by Frederik Ramm
Hi,

Post by bvh

Post by Frederik Ramm
Let us drop all this nonsense and concentrate on drawing up the moral
guidelines - saying what we consider ok and what not - instead of
fantasizing about having legal powers to enforce anything.

I don't get it : you go on about how license such and such is
possibly unenforceable and then you propose moral guidelines
that are 100% guaranteed not enforceable. I fail to see progress.

Well my position is the enlightened one: We can't enforce anything,

Why do you think we can't enforce anything?

Post by Frederik Ramm
Someone brought up 80n's example of how in tiles at home, we actually
use a big PNG image with one pixel for each Level-12 tile as a
database, telling us which tiles are land tiles and which are sea
tiles. So there's a database for you; at the same time, we say that
images created from OSM data (mashups etc) are not databases in the
sense of the license. This is one of, I'm sure, many points that will
never be solved clearly and properly.

That's what we have case law for though?

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[rob]

Post by Frederik Ramm
Well my position is the enlightened one: We can't enforce anything,

We don't know precisely what can and cannot be enforced.

This is why the current debate within OSM and with other organizations
is so important, to ensure that OSM has a reasonably firm basis for
whatever form the licence (or lack thereof) takes.

Post by Frederik Ramm
Pushing a viral license in full knowledge that it is unlikely to
work against those who chose to neglect it, is lying to the community

Fortunately nobody is doing this or is likely to do it.

If copyleft doesn't work then it obviously shouldn't be used and CC0
or similar is the way to go. But I don't think we're at that point yet.

It may well also be the case that the various layers of OSM (the GPS
tracks, ways, and rendered maps) may have different statuses in the
eyes of the law.

- Rob.

[bvh]

Post by Frederik Ramm

Post by bvh
I don't get it : you go on about how license such and such is
possibly unenforceable and then you propose moral guidelines
that are 100% guaranteed not enforceable. I fail to see progress.

Well my position is the enlightened one: We can't enforce anything,
so let's be honest, admit that we cannot enforce anything, and tell
people what we would like to do them, knowing full well that if
anyone does not comply, well, he doesn't.

For one, I am not 100% convinced that we cannot enforce some
sort of viral license. I am 100% convinved however that we cannot
enforce your moral guidelines.

Post by Frederik Ramm
Pushing a viral license in full knowledge that it is unlikely to work
Giving the community the illusion of legal power, and even a hunch of
a promise that you will go after the bad guys.

I don't think there is an expectation in the community that OSM
will try to sue. I think there is more an expectation that if
someone does something 'bad' that we will try to push our
point of view to slashdot and other sympathetic media. And that
will work much better if there is a license other than PD.

Post by Frederik Ramm
What you say is right; a license, even if not enforceable, does
express certain values or wishes. But in my eyes this is just
succumbing to wishful thinking ("I might sue them..."). Yeah you
might. But for this infinitesimally small chance of some time perhaps
taking someone to court, you weigh down your contribution with a
license that creates tons of questions, is unfair (because it has
much greater legal power in Europe than elsewhere), and wastes
everbody's time in dealing with it.

I think you focus too much on court and discount the other
ways of trying people to 'do the right thing'.

Post by Frederik Ramm
Someone brought up 80n's example of how in tiles at home, we actually
use a big PNG image with one pixel for each Level-12 tile as a
database, telling us which tiles are land tiles and which are sea
tiles. So there's a database for you; at the same time, we say that
images created from OSM data (mashups etc) are not databases in the
sense of the license. This is one of, I'm sure, many points that will
never be solved clearly and properly.

I am not a lawyer, but I am meeting some of them in my work.
And when I apply the yardstick of my profession (software engineer)
nearly nothing is clearly and properly solved in legal matters.
(I am sure a mathematician will say the same thing about my work)
Somehow I have the feeling you are applying the engineering measure
of 'clearly and properly solved' to the legal field.

My point is that interpretation within a given legal framework
is exactly how it is supposed to work. That is exactly why there
is so much action before things move to court. And the thing is :
even given the knowledge that everything you'll put on paper
is flawed in some way or another, it is still in your best interest
to state your wish and intent as much as possible within the
provided legal framework.

And from what I know only 3 options are thus far mentioned that
have some basis in some law : copyright, database rights or contracts.

Me personally I do think contracts are not the right representation
for OSM because that would suggest a license towards specific
users instead of the public at large. Copyright is also not the
right answer because a large part of our work is the recording
of reality and hence by definition not creative. That leaves us with
database rights which in my opinion have all the right properties.

cu bart

[Frederik Ramm]

Hi,
Bad choice of words, I meant to say the honest one. I thing
"enlightened" has too much of a divine component which I don't want
to claim ;-)

Bye
Frederik

[Gervase Markham]

Post by Frederik Ramm
And I may add my pet issue that if someone breaches contract you are
likely to be able to sue them for damages at most, which amount to
the money you could have earned if the contract had not been
breached, which is zero in our case.

This would not be true in all cases.

Say a company, Foo Inc, builds a business on providing services relating
to OSM data, which includes contributing to the database. Some US
company, Bar Corp, takes OSM data and breaks the contract - e.g. by
adding their own information but keeping it proprietary. Foo Inc could
certainly sue for damages based on the fact that Bar Corp has gained an
unfair competitive advantage due to their breach of contract.

I don't know whether _you_ or _I_ personally would have grounds to sue,
but there's a long jump between that and Bar Corp being able to assume
that _no-one_ would sue.

Gerv

[Frederik Ramm]

Hi,

Post by Gervase Markham
Say a company, Foo Inc, builds a business on providing services relating
to OSM data, which includes contributing to the database. Some US
company, Bar Corp, takes OSM data and breaks the contract - e.g. by
adding their own information but keeping it proprietary.

This is an interesting idea.

I am not quite sure whether the "contract" would be between OSM and
the user, or between the contributor and the user.

If the contract is between OSM and the user, then Foo cannot sue Bar
for breach of contract because they have no contract. (Can my
business sue your business because you use a pirated copy of
Microsoft Windows and thus have an unfair advantage? Unsure but don't
think so.)

If the contract is between Foo and Bar, and Bar is using data
contributed by Foo, then in what way would Bar have an unfair
advantage over Foo regarding the data (since Foo, having contributed
the data, can do anything they want with the data anyway)?

Bye
Frederik

[Gervase Markham]

Post by Frederik Ramm
If the contract is between OSM and the user, then Foo cannot sue Bar
for breach of contract because they have no contract. (Can my
business sue your business because you use a pirated copy of
Microsoft Windows and thus have an unfair advantage? Unsure but don't
think so.)

In my scenario, Bar would have needed to execute the contract to get a
copy of the data. Foo is one of the parties to the contract because they
are licensing (part of) the data to Bar. Therefore, there is a contract
between the parties.

Post by Frederik Ramm
If the contract is between Foo and Bar, and Bar is using data
contributed by Foo, then in what way would Bar have an unfair
advantage over Foo regarding the data (since Foo, having contributed
the data, can do anything they want with the data anyway)?

In my scenario, Bar has an unfair advantage because they are withholding
data from Foo, in breach of the share-alike part of the contract.

Gerv

[Gervase Markham]

Post by Jordan S Hatcher
I'd like to note that, just to clarify, factual data is generally not
copyrightable, and so there would be nothing to assign.

Why is it that we are assuming (and I'm not just saying this to Jordan)
that the individual nodes and ways in OSM are "factual data"? I don't
think that's true, at least not for everything. When I trace a road,
there is a creative process going on. I decide where to place nodes to
best represent the road without using too many, and so on. There's
certainly a creative element. Multiply that by millions of roads...

Something like a list of road names or perhaps a GPX track would be
factual data, sure. But not all data in OSM is like that.

Post by Jordan S Hatcher
-- Copyright probably protects copying (and other restricted acts)
the entire database and (to varying degrees only parts of the
database) but doesn't say much of anything about taking all the data
and creating a new database
-- Database rights in Europe protect extracting and re-utlising
substantial amounts of the data apart from the database (so sucking
out all the data and creating a new database).
-- Outside of Europe, you are likely to rely on contract and other
law (possibly unfair competition claims). Contract claims are one-to-
one (in personam) and not one-against-everyone (in rem). This means
that it is harder to enforce your claims against people who received
the (uncopyrightable) data from someone who breached the contract.

So if a disaffected insider in a mapping company anonymously sends OSM
in the US a copy of their database and we used it on a US-hosted copy of
OSM, they couldn't come after us on these grounds? Could they come after
us on any grounds?

Post by Jordan S Hatcher
-- People think that copyright protects actions with databases that
it doesn't (such as getting all the data out and creating a new
database)
-- What copyright does and doesn't protect in a database is really
tricky, even for IP experts, and so making the public try to parse
all the minute legal questions is overly burdensome and expensive
both in money (lawyer fees), time (spent wondering about the rights),
and lost opportunity (not using the database because of all the hassle)

Which is why we are using the FIL, right?

Post by Jordan S Hatcher
"The economic impact of the ?sui generis? right on database
production is unproven. Introduced to stimulate the production of
databases in Europe, the new instrument has had no proven impact on
the production of databases. ***
Is ?sui generis? protection therefore necessary for a thriving
database industry? The empirical evidence, at this stage, casts
doubts on this necessity.

So what protection is available in Europe for these database vendors? If
the answer is none, then why are more copies of proprietary databases
not floating around the web?

Post by Jordan S Hatcher
There has been some discussion of commercial data providers on this
-- IP rights such as copyright and database rights
-- contracts that prohibit re-distribution

So far, that's the same as our proposal, then? (Our contract doesn't
prohibit redistribution, but it does prohibit other behaviours. Is there
law to suggest that a non-redistribution clause has more legal force
than other types of clause?)

Post by Jordan S Hatcher
**-- marketing, branding, trade marks (and so on) that identify them
as a quality source of information

We can certainly do that :-)

Post by Jordan S Hatcher
I think it's important to point out that commercial companies
protecting their data do not allow their users to share it, and so
most of their protection is based around this. By allowing others to
share the work freely, you lose many of these avenues of protection
(like technical protection measures, for example).

This seems like equivocation on the word "protection". Your first use
means "restricting copying", and so your first clause is a tautology.
The last use means something wider.

OSM is looking for "protection" in the sense of "legally-enforceable
restrictions". Commercial mapping companies make "no redistribution" one
of their restrictions, but we don't. However, I don't see why that
should reduce the force of the legal mechanisms they and we can use to
enforce our restrictions.

Gerv

[Jordan S Hatcher]

Post by Gervase Markham

Post by Jordan S Hatcher
I think it's important to point out that commercial companies
protecting their data do not allow their users to share it, and so
most of their protection is based around this. By allowing others to
share the work freely, you lose many of these avenues of protection
(like technical protection measures, for example).

This seems like equivocation on the word "protection". Your first use
means "restricting copying", and so your first clause is a tautology.
The last use means something wider.
OSM is looking for "protection" in the sense of "legally-enforceable
restrictions". Commercial mapping companies make "no
redistribution" one
of their restrictions, but we don't. However, I don't see why that
should reduce the force of the legal mechanisms they and we can use to
enforce our restrictions.

Thanks for the comment.

You pointed out my use of the word protection [1], which may have
been unclear on what I was referring. Protection could be by legal
tools or by using other methods (such as the ones I mentioned).

My point is that there are other tools beyond contract (legal and
otherwise) based around not allowing further re-distribution.

-- one cannot rely on passwords and other controls to restrict access
to data (protecting it with a physical lock) and give anyone the
password, as it defeats the purpose of having a password in the first
place. A copyleft data licence can't use passwords to protect its
data. This is a non-legal protection not available for open data.
-- take trade secret for example. You cannot give everyone
information and then claim it is a secret. A commercial company could
have data protected by contract that they prohibit further
distribution and obligate the user to secrecy for the data. This is a
legal protection not available for open data.

Post by Gervase Markham
OSM is looking for "protection" in the sense of "legally-enforceable
restrictions".

I would think that OSM would be looking at all ways of protecting
their content in the way they choose best -- be it legal, technical,
or otherwise.

Thanks!

~Jordan

____
Mr. Jordan S Hatcher, JD, LLM

jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net

Open Data Commons
<http://opendatacommons.org>

Usage of Creative Commons by cultural heritage organisations
http://www.eduserv.org.uk/foundation/studies/cc2007


[1]
protection |pr??tek sh ?n|
noun
the action of protecting someone or something, or the state of being
protected

[Robert (Jamie) Munro]

Gervase Markham wrote:
| Robert (Jamie) Munro wrote:
|> Long term, we can avoid the ambiguity by making it clear that all data
|> belongs to OSM, whoever that is (probably the foundation), then we can
|> let the foundation change the license whenever they need to.
|
| This would be a copyright assignment, which would be a large change in
| the relationship between the participants and the project. As far as I
| understand it, it hasn't even been proposed.

It's been proposed by me several times in the past. I think it's
essential. I don't know of a similar major project that doesn't do some
kind of assignment. Wikipedia is the nearest, but Wikipedia is a
collection of articles that all stand on their own.

We need a situation where someone can say "Yes" when an enquiry comes
in, not "hire a lawyer to look at license XYZ". Otherwise the data is
useless for many purposes that everyone would agree it should be allowed
for.

For example, a while ago, ITN news needed a map of Baghdad. No one could
say for sure how much of the TV buletin they would have to release
CC-by-sa in order to allow them to do that. Looking back at that now,
probably "only" the final ITN styled bitmap image that is shown on the
screen, but the designers of ITN's style guidelines probably haven't
licensed ITN to release them.

If the foundation owned the data, they could say to ITN "just show a
logo and www.openstreetmap.org in the corner at some point", and
everyone would be happy.

Another example: it would be great if an npemap type system could be
used with OSM maps to derive a free postcode database, but license
incompatibilities make that impossible. This is insane. Obviously if
that went to any kind of vote, the foundation would allow that, but they
don't currently have the power to allow it.

Yes, maybe you can come up with a license that would unambiguously allow
the above two uses, but there will be cases where it will be in OSM's
interests to bend the rules, and we must provide a mechanism that allows
this.

Robert (Jamie) Munro

[Gervase Markham]

Post by Robert (Jamie) Munro
It's been proposed by me several times in the past. I think it's
essential. I don't know of a similar major project that doesn't do some
kind of assignment. Wikipedia is the nearest, but Wikipedia is a
collection of articles that all stand on their own.

Can you name some which do?

Post by Robert (Jamie) Munro
We need a situation where someone can say "Yes" when an enquiry comes
in, not "hire a lawyer to look at license XYZ". Otherwise the data is
useless for many purposes that everyone would agree it should be allowed
for.

But surely a license is a codification of "what everyone agrees it
should be allowed for"?

Post by Robert (Jamie) Munro
For example, a while ago, ITN news needed a map of Baghdad. No one could
say for sure how much of the TV buletin they would have to release
CC-by-sa in order to allow them to do that. Looking back at that now,
probably "only" the final ITN styled bitmap image that is shown on the
screen, but the designers of ITN's style guidelines probably haven't
licensed ITN to release them.
If the foundation owned the data, they could say to ITN "just show a
logo and www.openstreetmap.org in the corner at some point", and
everyone would be happy.

As I understand it, the new licence solves this problem.

Post by Robert (Jamie) Munro
Another example: it would be great if an npemap type system could be
used with OSM maps to derive a free postcode database, but license
incompatibilities make that impossible. This is insane.

(Define "free".) You may think so. Other contributors may think it's
entirely reasonable for postcode data calculated using OSM to be BY-SA
rather than PD.

Post by Robert (Jamie) Munro
Obviously if
that went to any kind of vote, the foundation would allow that, but they
don't currently have the power to allow it.

It would certainly be interesting to look at whether the licence change
would have any effect on the postcode problem.

Post by Robert (Jamie) Munro
Yes, maybe you can come up with a license that would unambiguously allow
the above two uses, but there will be cases where it will be in OSM's
interests to bend the rules, and we must provide a mechanism that allows
this.

There are negative sides to a copyright assignment. A) We probably
wouldn't get one from e.g. AND or MASSGIS (although I'm speculating). B)
It would mean the scenario I mentioned to Frederik, where a commercial
company could sue a license violator, couldn't happen, because they
would no longer be the copyright holder.

Gerv

[Frederik Ramm]

Hi,

Post by Gervase Markham
There are negative sides to a copyright assignment. A) We probably
wouldn't get one from e.g. AND or MASSGIS (although I'm speculating). B)
It would mean the scenario I mentioned to Frederik, where a commercial
company could sue a license violator, couldn't happen, because they
would no longer be the copyright holder.

C) the foundation would become hugely more important, and with that the
decision-making processes inside the Foundation and so on would suddenly
be under much more scrutiny than they are now, and we'd be spending 90%
of our time squabbling over how a certain vote might have ended
differently if only this and that. Not good. I like the Foundation to be
as unimportant as possible.

Bye
Frederik

[Andy Robinson (blackadder)]

Sent: 07 February 2008 9:22 AM
To: Licensing and other legal discussions.
Subject: Re: [OSM-legal-talk] [OSM-talk] Progressing OSM to a new
dataLicence regime
Hi,

Post by Gervase Markham
There are negative sides to a copyright assignment. A) We probably
wouldn't get one from e.g. AND or MASSGIS (although I'm speculating). B)
It would mean the scenario I mentioned to Frederik, where a commercial
company could sue a license violator, couldn't happen, because they
would no longer be the copyright holder.

C) the foundation would become hugely more important, and with that the
decision-making processes inside the Foundation and so on would suddenly
be under much more scrutiny than they are now, and we'd be spending 90%
of our time squabbling over how a certain vote might have ended
differently if only this and that. Not good. I like the Foundation to be
as unimportant as possible.

Agreed, the OSMF should only be the guiding light in these matters.

Cheers

Andy

Bye
Frederik
_______________________________________________
legal-talk mailing list
legal-talk at openstreetmap.org
http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk

[Robert (Jamie) Munro]

Gervase Markham wrote:
| Robert (Jamie) Munro wrote:
|> It's been proposed by me several times in the past. I think it's
|> essential. I don't know of a similar major project that doesn't do some
|> kind of assignment. Wikipedia is the nearest, but Wikipedia is a
|> collection of articles that all stand on their own.

I didn't make it clear that I want a non-exclusive, non-revokable
license to the foundation, rather than "assignment" as such. This is
important, for example, for the case of map data collected as a side
product of collecting some commercial data. There's no question that you
can still use your data for whatever you want.

| Can you name some which do?

~ * MusicBrainz.org
~ * voxforge.org

Then there's lots of code projects like Mozilla, apache, etc. and also
semi-free projects like dmoz.org, peoples map etc.

|> We need a situation where someone can say "Yes" when an enquiry comes
|> in, not "hire a lawyer to look at license XYZ". Otherwise the data is
|> useless for many purposes that everyone would agree it should be allowed
|> for.
|
| But surely a license is a codification of "what everyone agrees it
| should be allowed for"?

In theory yes, but based on how long we've been discussing this issue,
it can never be in practise.

|> For example, a while ago, ITN news needed a map of Baghdad. No one could
|> say for sure how much of the TV buletin they would have to release
|> CC-by-sa in order to allow them to do that. Looking back at that now,
|> probably "only" the final ITN styled bitmap image that is shown on the
|> screen, but the designers of ITN's style guidelines probably haven't
|> licensed ITN to release them.
|>
|> If the foundation owned the data, they could say to ITN "just show a
|> logo and www.openstreetmap.org in the corner at some point", and
|> everyone would be happy.
|
| As I understand it, the new licence solves this problem.

It might solve /that/ problem, but it will not solve all problems.

|> Another example: it would be great if an npemap type system could be
|> used with OSM maps to derive a free postcode database, but license
|> incompatibilities make that impossible. This is insane.
|
| (Define "free".) You may think so. Other contributors may think it's
| entirely reasonable for postcode data calculated using OSM to be BY-SA
| rather than PD.

In this case PD. FTP is PD, npemaps postcodes are PD.

|> Obviously if
|> that went to any kind of vote, the foundation would allow that, but they
|> don't currently have the power to allow it.
|
| It would certainly be interesting to look at whether the licence change
| would have any effect on the postcode problem.
|
|> Yes, maybe you can come up with a license that would unambiguously allow
|> the above two uses, but there will be cases where it will be in OSM's
|> interests to bend the rules, and we must provide a mechanism that allows
|> this.
|
| There are negative sides to a copyright assignment. A) We probably
| wouldn't get one from e.g. AND or MASSGIS (although I'm speculating).

We could handle large data donations specially. If there were 3 or 4
organisations we had to ask (and normally only 1 per geographic area)
before we could use the data for an unforseen purpose, that's a lot
easier than having to contact potentially thousands of contributors each
time.

How do we know that AND and MASSGIS will support our current proposed
license change?

| B)
| It would mean the scenario I mentioned to Frederik, where a commercial
| company could sue a license violator, couldn't happen, because they
| would no longer be the copyright holder.

If they are suing over a part of the data they contributed, they would
be joint copyright holders. They would be entitled to damages along with
the foundation. They could also help the foundation with legal costs or
something. I'm not sure of the law, but maybe they could sue on the
grounds that they lost money due to a third parties illegal actions,
even if the actions weren't against them directly.

Robert (Jamie) Munro

[Gervase Markham]

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1
|> It's been proposed by me several times in the past. I think it's
|> essential. I don't know of a similar major project that doesn't do some
|> kind of assignment. Wikipedia is the nearest, but Wikipedia is a
|> collection of articles that all stand on their own.
I didn't make it clear that I want a non-exclusive, non-revokable
license to the foundation, rather than "assignment" as such. This is
important, for example, for the case of map data collected as a side
product of collecting some commercial data. There's no question that you
can still use your data for whatever you want.
| Can you name some which do?
~ * MusicBrainz.org
~ * voxforge.org
Then there's lots of code projects like Mozilla, apache, etc. and also
semi-free projects like dmoz.org, peoples map etc.

I think I can speak with some authority when I say that Mozilla does not
require copyright assignment of any sort :-) Apache requires the type of
"rights sharing" you mention.

| But surely a license is a codification of "what everyone agrees it
| should be allowed for"?
In theory yes, but based on how long we've been discussing this issue,
it can never be in practise.

Surely the length of discussion is symptomatic of the fact that there is
actually some disagreement about "what everyone agrees it should be
allowed for" (your phrase)?

| There are negative sides to a copyright assignment. A) We probably
| wouldn't get one from e.g. AND or MASSGIS (although I'm speculating).
We could handle large data donations specially.

All contributors are equal, but some are more equal than others?

How do we know that AND and MASSGIS will support our current proposed
license change?

I assume that the OSMF has sounded them out. They have told us, at
least, that the removal of SA would cause a rethink, which implies that
there has been communication.

| B)
| It would mean the scenario I mentioned to Frederik, where a commercial
| company could sue a license violator, couldn't happen, because they
| would no longer be the copyright holder.
If they are suing over a part of the data they contributed, they would
be joint copyright holders. They would be entitled to damages along with
the foundation.

Actually, under the scheme you propose above, they would not be joint
copyright holders - copyright would remain with the original
contributor. But yes, if we did what you propose, then the suing would
still be possible.

Gerv

[SteveC]

Post by Tom Chance
What is the suggested time between the email and the delete steps, by the
by? You obviously need a deadline but I'd need a good pub trip to calm me
down if I found out all my data is wiped, I start fixing it and then a week
or two later the key person finally responds so wasting all my
effort ;-)

I think you're really overblowing the theoretical downside of changing
the license without any facts, and without balancing it against having
a license which may not even be legally enforcable for our purposes
(eg, the current license).

Lets concentrate on stage 1, and we can cross the other bridges when
we come to them.

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[Frederik Ramm]

Hi,

Post by SteveC

This sounds like a nightmare: I could lose weeks of work because
someone who fails to reply played with Potlatch once for a few
minutes and then vanished.

You have a better idea? :-)

Well if push comes to shove then in order to have a say about an
element in our database, you would have to have made a contribution
that earns you a copyright. I assume there are contributions too
trivial for that. Just being listed in our history database as someone
who has modified a way is probably not enough for having a copyright
(and the whole CC-BY-SA idea is based on people having copyright).

A trivial example of this is that it is currently possible to be
recorded as having edited a way even if you just upload the same
version again (in JOSM, select multiple objects of which some have a
certain tag and some not; change the "different" in the property
editor to a certain value, and you are recorded as having changed
all of the selected objects even if only some of them changed).

Bye
Frederik

[Dair Grant]

Post by Richard Fairhurst
Third case: there's an explicit clause (4.6) that a derivative
database protected by technological measures (such as one sealed in
a satnav) must also be made available in unrestricted form.

This clause requires that the unrestricted copy be "at least as
accessible to the recipient as a practical matter as the
restricted Database".

Is "accessible" here just a way to ensure that you can always
get data out of a proprietary system (i.e., your satnav should
come with a copy of the data in an easily parseable form like .osm)?

Or is it to require that users be able to do the same things
with the unrestricted copy as they can with the restricted copy
(i.e., your satnav must accept .osm data as well as its
proprietary version of that data)?


-dair
___________________________________________________
dair at refnum.com http://www.refnum.com/

[rob]

Post by Dair Grant

Post by Richard Fairhurst
Third case: there's an explicit clause (4.6) that a derivative
database protected by technological measures (such as one sealed in
a satnav) must also be made available in unrestricted form.

This clause requires that the unrestricted copy be "at least as
accessible to the recipient as a practical matter as the
restricted Database".
Is "accessible" here just a way to ensure that you can always
get data out of a proprietary system (i.e., your satnav should
come with a copy of the data in an easily parseable form like .osm)?
Or is it to require that users be able to do the same things
with the unrestricted copy as they can with the restricted copy
(i.e., your satnav must accept .osm data as well as its
proprietary version of that data)?

This is Parallel Distribution. We (the cc-licences mailing list)
discussed it during the CC 3.0 public review. My personal opinion is
that it is not a good idea because there is so much room for mischief
in it.

Rather than adding the complexity and potential for locking people out
that parallel distribution introduces, and the burden of maintaining
it for re-distributors, it is better to simply prohibit technological
protection measures being added by anyone other than the end user of
the data when they install the previously unprotected data onto their
own devices.

- Rob.

[MJ Ray]

rob at robmyers.org wrote: [...]

Post by rob
This is Parallel Distribution. We (the cc-licences mailing list)
discussed it during the CC 3.0 public review. My personal opinion is
that it is not a good idea because there is so much room for mischief
in it.

If you think it's a bad idea for another reason, then fine, but "room
for mischief" applies to almost all licences. Ultimately, whether
work is Free and Open with a capital F O is how it's actually handled
in practice.

After all, with the FDL, there was enough "room for mischief" that a
GNU project declared its whole manual to be an invariant section and a
magazine that said its table of contents was an invariant section.
Those uses were clearly not what FDL's authors intended, but there
will always be someone who misinterprets or deliberately misuses a
licence and then the default licensing position is "no licence".

As long as Parallel Distribution as specified will stand up as a
requirement if challenged, that's not a problem in itself IMO - it
seems a good way to make DRM copies more expensive and more cumbersome
and so discourage it.

Hope that helps,

[Rob Myers]

Post by MJ Ray
rob at robmyers.org wrote: [...]
If you think it's a bad idea for another reason, then fine, but "room
for mischief" applies to almost all licences. Ultimately, whether
work is Free and Open with a capital F O is how it's actually handled
in practice.

By "room for mischief" I mean "the ability to hand people restricted
work in practice". I mentioned the burden on redistributors as well.
Work may be Free Upstream, but it's important that it is Free On Actual
Delivery as well.

Post by MJ Ray
As long as Parallel Distribution as specified will stand up as a
requirement if challenged, that's not a problem in itself IMO - it
seems a good way to make DRM copies more expensive and more cumbersome
and so discourage it.

It actually makes transparent (sic) copies more expensive and more
cumbersome from the point of view of the DRM-enamoured. Having the
simple requirement that work be unencumbered sidesteps all this.

- Rob.

[Frederik Ramm]

Hi,

Post by Rob Myers
By "room for mischief" I mean "the ability to hand people restricted
work in practice". I mentioned the burden on redistributors as well.
Work may be Free Upstream, but it's important that it is Free On Actual
Delivery as well.

Not so important to me, to be honest. But we've been there ;-)

Bye
Frederik

[Tom Hughes]

In message <47a74c8f.AbnlhBkD60FCziRg%mjr at phonecoop.coop>

Post by MJ Ray
After all, with the FDL, there was enough "room for mischief" that a
GNU project declared its whole manual to be an invariant section and a
magazine that said its table of contents was an invariant section.
Those uses were clearly not what FDL's authors intended, but there
will always be someone who misinterprets or deliberately misuses a
licence and then the default licensing position is "no licence".

But the default position is not "no license" when it comes to
databases. What you say is perfectly correct for creative works
where copyright applies, but in most countries copyright does
not apply to collections of facts and you have to rely on
database right in those countries where it exists. Where database
right does not exist the default position is that anybody can
do what they want.

Tom

[Gervase Markham]

Post by SteveC
It is early days in data licensing (as opposed to Free/Open software
or creative work licensing). The OSMF feel that the ODL license is the
way forward for our project and reject the Public Domain Dedication [http://www.opendatacommons.org/odc-public-domain-dedication-and-licence/
] because it offers no 'viral' (share alike) protection to the data.

Cards on the table: I entirely and wholeheartedly support this principle.

My question is this: if the database as a whole is covered by a SA
provision, but the individual facts are equivalent to PD, how can the
law prevent a nefarious person splitting the database into lots of
individual facts by e.g. putting each on a separate web page, then
trawling the pages to reassemble their own database of all the facts,
which they then own? It may have a different schema, but basically all
the data would be there.

Gerv

[Iván Sánchez Ortega]

Post by Gervase Markham
My question is this: if the database as a whole is covered by a SA
provision, but the individual facts are equivalent to PD, how can the
law prevent a nefarious person splitting the database into lots of
individual facts by e.g. putting each on a separate web page, then
trawling the pages to reassemble their own database of all the facts,
which they then own? It may have a different schema, but basically all
the data would be there.

The law can't prevent that. But OSM (or the OSMF) could sue afterwards.

Basically, pulling every piece of data individually and putting it togheter
again is a transformation of the OSM DB, AFAIK.

This is when the definition of "substantial" in the law kicks in. If they
managed to get a hold on a substantial quantity of data by making lots of
non-substantial queries, they'll have a problem.


Disclaimer: IANAL, YMMV. Or, better said, "Your Jurisdiction May Vary".


Cheers,
--
----------------------------------
Iv?n S?nchez Ortega <ivansanchez at escomposlinux.org>

Br?jula: se??rula que va mont?dula en una esc?bula.
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[Frederik Ramm]

Hi,

Post by Iván Sánchez Ortega
Basically, pulling every piece of data individually and putting it togheter
again is a transformation of the OSM DB, AFAIK.

What if they crowdsource this? 1000s of people copy a tiny bit, and
someone then reassembles it ;-)

But to be quite honest, I don't care. If someone invests such an
amount of money or labour to get at our data then it must be quite
good indeed ;-)

Bye
Frederik

[Iván Sánchez Ortega]

Post by Frederik Ramm
Hi,

Post by Iván Sánchez Ortega
Basically, pulling every piece of data individually and putting it
togheter again is a transformation of the OSM DB, AFAIK.

What if they crowdsource this? 1000s of people copy a tiny bit, and
someone then reassembles it ;-)

If it's automated, we send a lawsuit.

If it's crowdsourced, we just send a suicide bomber to The People's Map HQ...



(note to intelligence agencies: I'm just kidding with the bomb thing...)
--
----------------------------------
Iv?n S?nchez Ortega <ivansanchez at escomposlinux.org>

...la Debian no es m?s dif?cil, s?lo tiene menos colorines al principio.
-Andr?s Herrera, en e.c.o.l.misc
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[SteveC]

Post by Gervase Markham

Post by SteveC
It is early days in data licensing (as opposed to Free/Open software
or creative work licensing). The OSMF feel that the ODL license is the
way forward for our project and reject the Public Domain Dedication
[http://www.opendatacommons.org/odc-public-domain-dedication-and-licence/
] because it offers no 'viral' (share alike) protection to the data.

Cards on the table: I entirely and wholeheartedly support this
principle.
My question is this: if the database as a whole is covered by a SA
provision, but the individual facts are equivalent to PD, how can the
law prevent a nefarious person splitting the database into lots of
individual facts by e.g. putting each on a separate web page, then
trawling the pages to reassemble their own database of all the facts,
which they then own? It may have a different schema, but basically all
the data would be there.

It's called a database right in the EU, or a contract if you're a
TeleTeq customer... :-)

Post by Gervase Markham
Gerv
_______________________________________________
legal-talk mailing list
legal-talk at openstreetmap.org
http://lists.openstreetmap.org/cgi-bin/mailman/listinfo/legal-talk

have fun,

SteveC | steve at asklater.com | http://www.asklater.com/steve/

[Dair Grant]

Post by rob
This is Parallel Distribution. We (the cc-licences mailing list)
discussed it during the CC 3.0 public review. My personal opinion is
that it is not a good idea because there is so much room for
mischief in it.

Personally I feel this is a good step forward from the current
licence; it allows the OSM data to be used more widely, and
doesn't sacrifice the ability to get back useful improvements to
the data.

Post by rob
Rather than adding the complexity and potential for locking people
out that parallel distribution introduces, and the burden of
maintaining it for re-distributors, it is better to simply prohibit
technological protection measures being added by anyone other than
the end user of the data when they install the previously
unprotected data onto their own devices.

I'm not sure what you are saying here, but the situation I had
in mind is that I work on some commercial software that would
like to use OSM data.

To do that we would need to pre-process OSM data into our own
proprietary format - which involves lossy compression,
encryption, building extra meta-data like routing tables, etc.

I would like to be able convert OSM data into this format, use
it in our app, and make available a reference copy of the
snapshot we started from.


I'm hoping the intent of 4.6 was to ensure that if OSM went
away, and our proprietary map was the only copy of the database
in existence, we would have to make the raw .osm available to
the world (which is good, IMO).

I don't really want to have to make our app accept .osm data as
input, since it would be unusable (being able to pre-process at
runtime isn't feasible: the USA takes about 2 days prep on a
2Ghz quad-core Mac Pro, so we can't ask someone on an 800Mhz
iBook to wait a week...).

I don't really want to have to de-compress our copy of the data
into .osm format, since I don't think it would be very useful to
OSM (we could certainly do it, but since the compression is
lossy it would produce a bunch of nodes in different positions
and so couldn't be diff'd against OSM to identify changes or
confirm there are none).

However I would like to be able to let end-users flag up
bugs/make changes to map data, which we could feed back into OSM somehow.


I think this is a good model, since it benefits all parties: our
app gets to use OSM data, our users get to see OSM data, and OSM
gets back useful changes.

The proposed licence looks like a really good model for geodata
to me, as it understands that there are two goals - to encourage
wide-spread useage of the data (even commercial use), and to
pull back useful changes (and they have to be useful: having
someone send back "node X is now at 51.12" is pointless when the
real OSM data puts node X at 51.1200345).


-dair (irrespective of the final licence, I'd like to thank the
OSMF and everyone involved in drawing this up - it is really
encouraging to see the amount of effort that has gone into this)
___________________________________________________
dair at refnum.com http://www.refnum.com/

[Richard Fairhurst]

Surely if a person releases something under PD, he/she is giving up
all rights to that information, be it software, data, etc.
So what's to stop OSM doing what they want with the data.
For instance if the whole of the OSM database was public domain. A
private company could write some mapping software that uses OSM
data, And there would be nothing to stop them selling this software
and data together.
Or have I got this PD thing all wrong ?

Brief recap:

Some OSM users would be very happy with this.

Others insist on a "share-alike" provision, as there is in the current
licence.

Reconciling the two is pretty much impossible, and neither side is
going to convince the other.

What we're discussing is adopting a better licence, not changing the
whole approach in this way. There have also been suggestions that
individual users could choose to formally declare their edits to be
public domain, facilitating unrestricted use of their data. That is
also worth discussing.

Big philosophical questions about "which is better" probably aren't
worth it. We've been there a thousand times before and we're not going
to change anyone's mind.

Please keep the discussion on legal-talk at openstreetmap.org, not
talk at openstreetmap.org - thanks. :)

cheers
Richard

[Dair Grant]

Post by Robert (Jamie) Munro
We need a situation where someone can say "Yes" when an enquiry
comes in, not "hire a lawyer to look at license XYZ". Otherwise the
data is useless for many purposes that everyone would agree it
should be allowed for.

Unless you go for an unrestricted model like PD, anyone using
OSM data commercially is going have to have a lawyer look at the
licence (at which point it's the licence text that counts, not
who owns the copyright on individual bits of data).

Having said that, it'd be useful to have some guidelines on
example usage from the OSMF - like the human-readable summary
you get with a CC licence.

The share-alike aspect is always the bit that causes confusion,
so a summary of how that interacts with common situations like a
web-page, a printed map, combining with proprietary data,
transcoding to another format, giving credit, etc.


-dair
___________________________________________________
dair at refnum.com http://www.refnum.com/

[Peter Miller]

As a sanity check can I propose a few uses of OSM data and see if we think
they would be allowed, or not allowed, based on the proposed licence and
also if we would want them to be allowed or not. Can I suggest that we build
up a library of such scenarios and for each one discuss any legal
difficulties?



Someone takes OSM data and creates a map of an area of the country and
surrounds it with photos and diagrams and wants the collection to be C to
them. I would hope that this was allowed but that the person was expected to
put a licence phrase relating to the OSM content on the resulting map.



Someone take OSM data, makes some additions to the street data and then
publishes it as above with additional photos and diagrams. I would hope that
this was allowed, that a message on the paper map was required and that the
updated 'Derived Database' of OSM data was made available in a suitable and
usable form for inclusion in OSM in the future.



Someone creates a video animation from OSM data to be broadcast as part of a
news package on the BBC. I would hope that it would be ok, but that a
acknowledgement for OSM was included in the credits or visibly as part of
the animation or by other means, possibly on their web site if there was
genuinely no reasonably way to include it in the broadcast.



BadMapCo creates a Collective Work based on their own mapping data (roads in
most places and footpath/cycle path data in places) and augment this with
additional footpath/cycle path from OSM (taken as a Derivative Database with
a geocoded boundary) and then published the resulting DB as C BadMapCo as a
Collective Database with acknowledgement for OSM. Over time they reduce the
area taken from OSM until it isn't necessary any more, but by shrinking the
area which they use from OSM as they complete their own surveying they never
add any content to the Derived Database to offer back to us.



LicenceBreaker creates a Collective Database with OSM data and some other
random Public Domain geocoded photos and publishes it as a Collective Work
as PD (which I think the licence currently allows). Someone else takes the
PD Collective Work and removes the irrelevant photos and publishes the
original OSM data as PD.



BadInternetCompany takes OSM data, uses it to create mapping and offers it
to the public and then encourages their users to correct and improve it, but
claim that, since it is only for 'internal' use, they therefore don't have
to offer any content back to OSM.









Regards,









Peter Miller



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[Iván Sánchez Ortega]

[...] see if we think they would be allowed, or not allowed, based on the
proposed licence and also if we would want them to be allowed or not.

OK, here goes my personal view on these cases.

Disclaimers: IANAL, so take this with a grain of salt. Everything is IMHO.

"ODL-DB" means "Open Database License"; "ODL-factual" means "Open Data Factual
Info License".

Someone takes OSM data and creates a map of an area of the country and
surrounds it with photos and diagrams and wants the collection to be C to
them. I would hope that this was allowed but that the person was expected
to put a licence phrase relating to the OSM content on the resulting map.

He couldn't copyright the entire collection: the data from which the data
comes from will still be covered by ODL-factual. The viral clause(s) from
ODL-factual would stop that person from getting a copyright on the street
names, etc.

ODL-DB would not apply in this case.

Someone take OSM data, makes some additions to the street data and then
publishes it as above with additional photos and diagrams. I would hope
that this was allowed, that a message on the paper map was required and
that the updated 'Derived Database' of OSM data was made available in a
suitable and usable form for inclusion in OSM in the future.

No. ODL-DB would only be enforceable if that person *redistributes*
the "derived database". If he doesn't, he doesn't have to abide by ODL-DB.

Someone creates a video animation from OSM data to be broadcast as part of
a news package on the BBC. I would hope that it would be ok, but that a
acknowledgement for OSM was included in the credits or visibly as part of
the animation or by other means, possibly on their web site if there was
genuinely no reasonably way to include it in the broadcast.

Exceptions for critical analysis apply here.

AFAIK, most EU countries have a couple of rights to allow citations and such,
similar to the US concept of "fair use". If, by any change, an OSM image
would get some screen time in BBC news, BBC does *not* have to abide to our
licenses, as long as they only use the OSM image(s) for commenting on the
project, etc.

The same goes for scientific research. If you're writing a paper on
geographical database indexing (or whatever), you can get a portion of OSM
data and do *whatever* you want with it.

AFAIK, no license can stop this from happening. The CC licenses even have a
clause making this fact explicit:

"2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit,
or restrict any uses free from copyright or rights arising from limitations
or exceptions that are provided for in connection with the copyright
protection under copyright law or other applicable laws."

BadMapCo creates a Collective Work based on their own mapping data (roads
in most places and footpath/cycle path data in places) and augment this
with additional footpath/cycle path from OSM (taken as a Derivative
Database with a geocoded boundary) and then published the resulting DB as C
BadMapCo as a Collective Database with acknowledgement for OSM.

If BadMapCo uses *only* footpaths from OSM, then the resulting DB can *not* be
a collective one.

Even if the only thing that BadMapCo does is re-arranging the DB (for example,
distributong a portion of the planet, or converting "planet.osm" to a
diferent format), then anything resulting is a *derivative* DB, and any OSMer
would be in an advantage when suing BadMapCo.

For a DB to be part of a collective DB, it must be *unmodified*. Converting
the data to another format (e.g. MySQL to PGSQL) is a modification. Even
extracting a polygon is a modification.

LicenceBreaker creates a Collective Database with OSM data and some other
random Public Domain geocoded photos and publishes it as a Collective Work
as PD (which I think the licence currently allows).

No. My interpretation of ODL-DB, clause 4.5, is that the resulting DB must
include a notice about the OSM data being covered under ODL-DB. This would
prevent the whole collective work from being pure PD.

BadInternetCompany takes OSM data, uses it to create mapping and offers it
to the public and then encourages their users to correct and improve it,
but claim that, since it is only for 'internal' use, they therefore don't
have to offer any content back to OSM.

"Public" and "Internal use" are not sinonyms. ;-)

If this happens, then some OSMers would sue BadInternetCompany.

Is it neccesary to make this point of "publishing to the Internet" more
explicit in the ODL-DB draft?



Cheers,
--
----------------------------------
Iv?n S?nchez Ortega <ivansanchez at escomposlinux.org>

Now listening to: Angelo Badalamenti - Secretary (2002) - [11] Secretary's
Secrets (2:44) (0.000000%)
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[Frederik Ramm]

Hi,

Post by Iván Sánchez Ortega

Post by Peter Miller
BadMapCo creates a Collective Work based on their own mapping data
(roads in most places and footpath/cycle path data in places) and
augment this with additional footpath/cycle path from OSM (taken
as a Derivative Database with a geocoded boundary) and then
published the resulting DB as C BadMapCo as a Collective Database
with acknowledgement for OSM.

If BadMapCo uses *only* footpaths from OSM, then the resulting DB can *not* be
a collective one.

[...]

Post by Iván Sánchez Ortega
For a DB to be part of a collective DB, it must be *unmodified*.
Converting the data to another format (e.g. MySQL to PGSQL) is a
modification. Even extracting a polygon is a modification.

Extracting a polygon is a modification but can you not separate the
steps:

1. Original OSM data
2. extract polygon, get a derived database, which you have to make
available
3. use the derived database, in unmodified form, and combine it with
your own data to make a collective database

Your own data would never take part in the formation of a derived
database in this case.

Bye
Frederik