ODBL enforcement: contract law and remedies

[Ed Avis-2]

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

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

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

Please see <http://lwn.net/Articles/294066/> which describes the JMRI
case.  At first the district court in the US ruled that the Artistic
License (a free software licence used by this project) was in fact a
contract.  As the LWN article notes, that was bad news: to enforce the
licence effectively you want it to *not* be a contract.  Fortunately
that decision was overturned on appeal, setting a strong precedent
that free software licences (stated as permission grants) are
enforceable.

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Frederik Ramm]

Ed,

    the question "what avenues do we have open if someone breaches the
contract" has been discussed on legal-talk, for example in this thread:

http://lists.openstreetmap.org/pipermail/legal-talk/2008-February/000637.html

I don't know if the License Working Group have pursued this further in
the mean time; at the time, we arrived at roughly the same conclusion
that you did (we can sue them for damages but if there are no damages
then there's no case). Someone brought up the idea of "punitive damages"
but I don't believe in it.

So yes, this is a weak point - the whole contractual element of the ODbL
is a very weak point indeed as it is very conceivable that violators
will claim they never entered into the contract in the first place.

However, you are wrong in alluding that there is a choice:

> I am concerned that the ODBL throws this away by explicitly stating
> that 'the ODbL is also an agreement in contract'.  Does that not
> weaken the ability to take out injunctions or seek other equitable
> remedies against those who violate the licence?

It is quite clear (at least to me) that our data cannot be protected by
copyright alone; but if our data is not protected by copyright, and if
the jurisdiction in question does not have a "sui generis" database law,
then we do not have the option to build a "permission based" license
because nobody needs permission to use our data!

So, and that takes us back to RichardF being quoted in the posting cited
at the beginning, the ODbL at least *tries* to use all avenues open to us.

The Science Commons people, righly, say that it is morally doubtful to
claim copyright where none exists, and I think in this vein the ODbL is
morally superior to CC-BY-SA for OSM data, because the latter is based
on copyright which in all likelihood does not exist for OSM data.

Bye
Frederik

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

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Frederik Ramm <frederik@...> writes:

>http://lists.openstreetmap.org/pipermail/legal-talk/2008-February/000637.html
>
>I don't know if the License Working Group have pursued this further in
>the mean time; at the time, we arrived at roughly the same conclusion
>that you did (we can sue them for damages but if there are no damages
>then there's no case).

> However, you are wrong in alluding that there is a choice:

>It is quite clear (at least to me) that our data cannot be protected by
>copyright alone;

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

>but if our data is not protected by copyright, and if
>the jurisdiction in question does not have a "sui generis" database law,

I would say that in this case, the wise citizens and parliament of that
jurisdiction have decided that map data should be free, and good luck to them.
After all the purpose of the OSM project is to have freely-available map data;
if a law were passed tomorrow putting all maps into the public domain it would
be most odd for OSM to start fighting against it.

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

There is still the small question of whether any such place exists.  Again,
is there any evidence (rather than just repetition of the same opinions)
that in some country, OSM data is effectively in the public domain?  And is
that country significant enough to make it worth imposing a new, contract-
based licence on the rest of the world just to address this 'problem'?
What harm would it cause in practice if Elbonia did not recognize copyright
in maps?

>The Science Commons people, righly, say that it is morally doubtful to
>claim copyright where none exists, and I think in this vein the ODbL is
>morally superior to CC-BY-SA for OSM data, because the latter is based
>on copyright which in all likelihood does not exist for OSM data.

That's interesting.  However the ODBL also claims to be a copyright licence,
while acknowledging that what is copyrightable varies between jurisdictions.

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Frederik Ramm]

Hi,

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

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

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

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

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

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

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

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

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

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

Bye
Frederik

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

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Frederik Ramm <frederik@...> writes:

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

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

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

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

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

On 27/10/09 11:04, Ed Avis wrote:

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

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

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

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

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

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

Tom

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

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Tom Hughes <tom@...> writes:

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

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

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Matt Amos-3]

On Tue, Oct 27, 2009 at 11:30 AM, Ed Avis <eda@...> wrote:

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

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

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

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

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

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

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

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

cheers,

matt

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Matt Amos <zerebubuth@...> writes:

[CC-BY-SA unclear, or not permissive enough?]

>>>We know for a fact that a number of people (especially people that have
>>>asked their lawyers for an opinion) have indeed decided not to use our
>>>data for this reason.
>>
>>That is certainly a good reason to switch to a simpler and legally
>>unambiguous licence.  Have these same lawyers reviewed the ODBL and given
>>it the thumbs up?
>
>Several lawyers have looked at ODbL and commented.

Yes - specifically what I was asking about was whether these same people
who decided they were unable to use OSM data under CC-BY-SA would be
happy to use it under ODBL.  (Myself, I suspect not!)

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

Agreed.  My inclination would be to keep things simple and stick with
copyright - with an additional permission grant of the database right
in countries where a database right exists.  ('You may use and copy
the database as long as you distribute the result under CC-BY-SA, and
grant this same database permission to the recipient.')

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

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

Thanks.  Those are indeed problems with the licence.  But only the first
one is a reason to *drop* CC-BY-SA; the remaining ones are just as easily
addressed by dual-licensing under both Creative Commons and some other,
more permissive (and acceptable-to-some-lawyers) licence.  I would happily
support such a move.

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Matt Amos-3]

On Tue, Oct 27, 2009 at 1:06 PM, Ed Avis <eda@...> wrote:

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

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

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

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

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

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

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

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

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

cheers,

matt

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Frederik Ramm]

Hi,

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

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

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

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

Bye
Frederik

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Matt Amos-3]

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

indeed. the odbl says:

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

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

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

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

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

cheers,

matt

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Matt Amos <zerebubuth@...> writes:

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

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

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

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

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Frederik Ramm]

Ed,

    I don't quite follow your logic.

You seem to be saying:

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

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

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

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

Is that a correct sum-up?

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

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

Bye
Frederik


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Matt Amos-3]

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

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

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

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

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

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

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

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

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

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

cheers,

matt

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

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Matt Amos <zerebubuth@...> writes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Frederik Ramm <frederik@...> writes:

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

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

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

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

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

--
Ed Avis <eda@...>




_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Matt Amos-3]

On Wed, Oct 28, 2009 at 12:20 PM, Ed Avis <eda@...> wrote:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

cheers,

matt

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Frederik Ramm]

Hi,

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

No, that would be great.

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

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

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

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

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

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

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

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

Bye
Frederik

_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk

[Ed Avis-2]

Matt Amos <zerebubuth@...> writes:

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

OK.

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

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

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

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

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

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

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

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

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

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

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

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

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

--
Ed Avis <eda@...>


_______________________________________________
legal-talk mailing list
legal-talk@...
http://lists.openstreetmap.org/listinfo/legal-talk