[od-discuss] no endorsement clauses and OKD conformance (was Re: Up and Coming: Open Government Licence in Canada (OGL-C))

Sun Dec 9 21:32:29 UTC 2012

On Fri, Dec 7, 2012 at 3:45 PM, Herb Lainchbury
<herb at dynamic-solutions.com> wrote:
> My first impression is that this license is a good step in the right
> direction. The only thing niggling me is this clause:
>
> "ensure that you do not use the Information in a way that suggests any
> official status or that the Information Provider endorses you or your use of
> the Information;"

I'm not certain the may-not-imply-endorsement item you quote is non-conformant.

Per a literal reading of the OKD -- note the clarified 1.2 draft is at
https://github.com/okfn/opendefinition/blob/master/source/open-knowledge-definition.markdown
-- it probably is non-conformant, and we should certainly strive to
have literal reading match expectation and ruling.

Historically, the CC-BY and CC-BY-SA licenses have
may-not-imply-endorsement clauses and are on the compliant list --
https://creativecommons.org/licenses/by/3.0/legalcode includes:
    "You may only use the credit required by this Section for the
purpose of attribution in the manner set out above and, by exercising
Your rights under this License, You may not implicitly or explicitly
assert or imply any connection with, sponsorship or endorsement by the
Original Author, Licensor and/or Attribution Parties, as appropriate,
of You or Your use of the Work, without the separate, express prior
written permission of the Original Author, Licensor and/or Attribution
Parties."

Also the UK PSI click-use license
http://opendefinition.org/licenses/ukpsi/ has a no-endorsement clause
and is on the conformant list, but ought be removed for lots of other
problems, whatever we decide about may-not-imply-endorsement:
    "not use the Material for the principal purpose of advertising or
promoting a particular product or service, or in a way which could
imply that it is endorsed by a Department or a Public Sector
Organisation;"

Practically, I think may-not-imply-endorsement is less open to bad
interpretation than do-not-mislead. Last time we discussed this Rufus
squinted hard and found that maybe may-not-imply-endorsement was a
kind of integrity clause, thus kind of OK
http://lists.okfn.org/pipermail/od-discuss/2011-October/000065.html

We should either explicitly add may-not-imply-endorsement to the OKD
as an acceptable restriction, at least as a comment on the intention
of the integrity item, or in some way downgrading if not
moving to non-compliant altogether CC-BY and CC-BY-SA <= 3.0. Perhaps
adding a note on the OD website now about that problem, and
(hopefully, see below) strongly recommending moving to 4.0 when that
is released. It would be odd to simply mark as non-conformant the most
widely used and generally recognized as "fully open" non-software
licenses. (Disclosure: I worked for CC for a long time and am
consulting with them on 4.0.)

> Of course, this seems entirely reasonable, but is both redundant and
> probably makes it non-conformant with the open definition.  I wonder if
> perhaps they might entertain a suggestion to move that clause from the
> restrictions section and put it in the Exemptions section.  That way, while
> still redundant, at least its not showing up as an additional restriction.
>
> I don't know if that's practical but to me it seems so.

Great suggestion. Also, it there are examples in the wild, and in draft.

https://www.gnu.org/copyleft/fdl.html
"The author(s) and publisher(s) of the Document do not by this License
give permission to use their names for publicity for or to assert or
imply endorsement of any Modified Version."

http://mirrors.creativecommons.org/drafts/by-nc-sa_4.0_draft.html
(obviously NC is non-open; language below will be same in BY and
BY-SA)
"For the avoidance of doubt, nothing in this Public License
constitutes or may be construed as permission to assert or imply that
You are, or that any use by You of the Work or an Adaptation is,
connected with, or sponsored, endorsed or granted official status by,
Licensor.
...
For the avoidance of doubt, the conditions contained in this Section
3(a) do not give You permission to assert or imply any connection
with, sponsorship, endorsement or official status granted by Licensor
as stated in Section 2(b)(5). You must, to the extent reasonably
practicable, remove the information in (a)(1)(A) above if requested by
Licensor."

The difference between an exemption
(no-permission-to-imply-endorsement) and condition
(may-not-imply-endorsement) seems very clear to me as a categorical
matter, but I'm not sure what if any practical difference there is.

> Then again, with the sub-License clause, it appears that the extra clause
> could be eliminated by republishing the data, but my preference would be for
> this license to just conform out of the gate eliminating the need.

I'm doubtful that sublicensing allows "washing" of original license
conditions in this manner, but would be happy to be wrong.

> Would love to read more thoughts on this thread.

I'd love to read more thoughts on OGL-C, and I created a new thread
here for no endorsement clauses (exemption and condition varieties)
and the OKD here...

Mike