[od-discuss] contracts v. license [was Re: Open Game License 1.0a for approval]

[Luis Villa]

Weighing in a little late here, but...

On Wed, Oct 23, 2013 at 12:16 PM, Mike Linksvayer <ml at gondwanaland.com>wrote:

> On Wed, Oct 23, 2013 at 12:23 AM, Kent Mewhort <kent at openissues.ca> wrote:
> > Astute point Federico. Perhaps we should be rejecting any "license" that
> > tries to impose obligations through contract that would not otherwise be
> > imposable through copyright, trademark, or other IP rights.
> >
> > The recently
> > rejected Calgary license is a prime example of this, where the "license"
> was
> > intermingled with the contractual terms of use.  In this case, the terms
> > stated "If you access, use or download any of the datasets (&"Data")
> > provided by The City of Calgary (&"The City") on this website (&"Site")
> you
> > accept and agree to comply and be legally bound by [this agreement]".
>  These
> > terms would likely apply irrespective of whether you did anything to
> > implicate copyright in the work.
> >
> > The Open Game License isn't quite clearly as founded in contract as the
> > Calgary license -- it's labelled as a license throughout and leads off
> with
> > a copyright notice -- but it's overall a bit questionable.  In
> particular,
> > it seems that the "Offer and Acceptance" and "Grant and Consideration"
> > sections are attempting to make the terms apply through contract in
> addition
> > to copyright.  The inclusion of non-copyrightable "methods, procedures,
> > processes and routines" add fuel to this fire.
> >
> > I'm not sure this flaw clearly fails the current Open Definition, so we
> > should probably think through this a bit more for 1.2.  Also, a bit
> > problematically, I think some already-approved licenses suffer the same
> > flaw.  For example, the OGL Canada states "Use of any Information
> indicates
> > your acceptance of the terms below" and "Information" is defined as
> > "information resources protected by copyright or other information that
> is
> > offered for use under the terms of this licence".  The UK OGL, even
> though
> > only slightly different, should be fine; it defines "use" as "doing any
> act
> > which is restricted by copyright or database right."
>
> ODbL?
>
> (BTW, I don't know if there's any record of conformance decisions
> prior to the archives of this mailing list, but if anyone has records
> leading to conformance decisions on pre-2010 licenses, would be great
> to document on the site.)
>
> I think contractual restrictions are just fine with regard to
> conformance, so long as within bounds of restrictions permitted by the
> Open Definition. If a restriction makes a license or license-like
> instrument non-open, it shouldn't matter whether the restriction is
> based on lack of adequate carve-out permission from default regime, or
> imposed by other means.
>

Two points re contract:

1. In some jurisdictions, it is not clear that there really is such thing
as a "license", so lots of licenses are structured as contracts. (See,
e.g., the first sentence of CC 4.0).

2. Exactly what "obligations [are not] imposable through copyright,
trademark, or other IP rights" is a matter of some debate - e.g., strong
(though I think incorrect) legal arguments have been made that the GPL
fails this test. So I don't think it's a very useful rule of thumb.

So I'm with Mike- the key question is the content of the restriction, not
the means in which it is achieved.

Luis


On Tue, Oct 22, 2013 at 12:34 PM, Herb Lainchbury
> <herb at dynamic-solutions.com> wrote:
> > It might be out of scope for the OD to address the idea that facts have
> no copyright protection but I would like to see this addressed somewhere.
>  I myself am not 100% clear why licensing is required for something that
> has no protection.
>
> For..."protection". ;-)
>
> In the case of the Open Game License, a fairly traditional protection
> from competition. But nobody is obligated to accept the terms if they
> believe no permission is needed for whatever they are doing.
>
> In the case of ODbL, protection from free-riding exploitation. Or I
> think more productively thought of as prototyping a pro-sharing
> regulatory regime, attempted explanation at
> http://gondwanaland.com/mlog/2012/01/31/copyleft-regulates/ ... and of
> course nobody is obligated to accept terms if they believe no
> permission is needed for whatever they are doing (and regarding the
> ODbL, I still don't understand how its contract layer is effective at
> all in protecting where no default restriction exists given 6.1, and
> would be happy to be educated).
>
> Mike
>
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