[od-discuss] Schema for open licenses - prototype

Fri Jun 29 17:34:42 UTC 2012

>
> So, am I right in my new understanding that there are no
> (non-obsolete) licenses that deal with rights clearing?
>
> i.e. whenever I use open data, under any current license, I
> risk infringing on copyrights of 3rd parties that I am unaware of.
>  So, there is always the chance that someone might crawl out of the
> woodwork later claiming that I am infringing.
Yes, this is correct, at least under the terms of all the common open
licenses that I'm familiar with.  It's "buyer beware" for any 3rd party
copyrights.

These risks of 3rd party infringements aren't unique to the open world
though.  Foremost, liability for innocent infringements is a major issue
in the context of websites.  For example, I might contract out the
development of my website development.  The web developer might use a
copyrighted image without a license, unbeknownst to me.  I'll still be
on the hook for infringement (unless I made sure that my contract
included a warranty of noninfringement, or least didn't disclaim
warranties such that I can try to argue for an implied warranty -- but
this often not the case, or, if it is, the warranty can be difficult to
enforce if I contracted overseas).

In fact, copyright trolls often make it a cornerstone of their
businesses to look for and pursue damages or settlements from just these
types of innocent infringements.

IMO, the solution lies with policy changes, not making the licensor take
on additional liabilities here.  The problem is with copyright law, not
the allocation of risk.  There should be only very low stat damages, or
no stat damages at all, available for innocent infringements (noting
that, in many, if not most cases of open data use, the actual damages
are low).  This way, if the licensor is being negligent about clearing
rights, the copyright owners can still go after the original licensor,
but just not the innocent bystander.