[odc-discuss] Open Database Licence

[Jonathan Rochkind]

Oops, no I did not mean for that to be off list. I'll forward it, and 
this reply to the list.

I'll read your background info, thanks.

One note of concern is your emphasis on the difference between data and 
databases. I understand the difference in law (in some jurisdictions), 
but with the kinds of data I deal with in the library world, the 
distinction in law is hard to carry forward in practice. Most of our 
databases consist of multiple subsets of data that were themselves 
harvested from other databases -- and will then themselves have subsets 
of their data extracted into yet other databases.  And these 
transactions aren't neccesarily even one way -- database B could get 
some data from database A, that data could be changed/enhanced/improved 
while in database B, and then database A could later get it back again.

This makes a distinction between 'data' and 'databases' pretty 
unworkable in practice in  my opinion, even if it exists in the law.

Now, if there are some databases that are more coherent wholes, I guess 
I can understand wanting to take advantage of that to make use of the 
rights given (in some jurisdictions; not so much in the US as I 
understand it) to 'databases'.  But I'd caution people to be careful 
with that, I'm not sure it's a good idea. What seems to you to be a 
coherent whole 'database' is quite possibly destined for slice-and-dice 
remixing in the contemporary internet world, it's what the internet 
wants to do with your data. You could try to license _against_ this, 
saying your 'database' needs to be used en toto, and not combined with 
other data -- assuming you can actually cobble together a legal right to 
enforce such a license restriction (which in the US is going to be 
difficult). But I think you'd seriously limit the utility of your data 
by doing that.   Personally, I think that applies to the open street map 
stuff, but I respect that the open street map community thinks different.

But, okay, if some people think they can get away with enforcing 
licensing restrictions based on the 'database', and there is reasonable 
legal counsel that this is indeed something that can be enforced, then I 
suppose it makes sense to provide for those needs.  But I think it's 
just asking for trouble, and likely to cause trouble down the line -- 
just on the grounds of your legal rights accross jurisdictions to 
enforce such restrictions.  And legal confusion can seriously inhibit 
the willingness of people to use the stuff.

Rufus suggests that no major player is going to try and violate a 
license even if it's legal enforceability is unclear. (I'm not sure 
that's so -- it depends on how valuable the data and it's intended 
possibly-violating use is).  I'd suggest there's another side of that 
coin though:  Especially when it comes to slicing and dicing and mixing 
together data from various sources, no major player is going to be 
_willing_ to use data if it's right to do so is unclear.

Jonathan

Rufus Pollock wrote:
> Did you mean this to be off-list?
>
> 2009/3/4 Jonathan Rochkind <rochkind at jhu.edu>:
>   
>> Some people definitely think it's unworkable, for legal reasons as well as
>> practical ones. The practical ones are a value judgement that can be
>> debated, it's a legitimate opinion that the gain is worth the effort. But
>> the legal reasons... if it's not predictably legally enforceable, then even
>> if your value judgement is you want a SA license, you might be in trouble.
>>     
>
> Read the comments on the SC protocol [1]. I would agree that in some
> jurisdictions (e.g. the US) users who wish to take a risk might be
> able to get round a 'pure' license (if you really want to address this
> you'd have to use clickwrap but I think this is *really* not a good
> idea). But frankly what users, especially 'big' ones, would want to
> take the 'risk'.
>
>   
>> Here's the best distillation I've found of both the legal and
>> practical-value concerns:
>>
>> http://sciencecommons.org/wp-content/uploads/freedom-to-research.pdf
>>     
>
> Yes. I've seen it. Let me know what you think after you've read the
> stuff I sent especially the guide and comments on the SC protocol.
>
>   
>> Do again note that there are two themes there; the practical use value
>> argument is debatable based on standpoint. The legal argument is more about
>> what is, regardless of what you'd like.
>>     
>
> Right.
>
>   
>> But yeah, if you guys think a SA style license for (possibly factual) data
>>     
>
> We've got to be careful here about data versus databases. See another appendix:
>
> <http://blog.okfn.org/2009/02/09/facts-and-databases/>
>
>   
>> really is predictably legally enforceable the way you've written it, then
>> that's a useful service, and I understand why both a SA and and an "all
>> rights released" style license should be made available. I'll have to look
>> more at that license to see how you've managed to constrain the legal
>> uncertainties. But it makes sense to me that there's no need for two "all
>> rights released" style licenses, and I'm more comfortable with the
>> predictable legal enforceability of the PDDL.
>>     
>
> "predictable legal enforceability"? The PDDL has no enforceability
> since it requires nothing and waives all rights. In this sense it is
> 'predictable' though in a rather weak sense -- and, at least for those
> using the DB, ODbL is equally straightforward to comply with (see
> comments in [1] for more on this).
>
> Rufus
>
> [1]:<http://blog.okfn.org/2009/02/09/comments-on-the-science-commons-protocol-for-implementing-open-access-data/>
>
> Rufus
>