[odc-discuss] ODbL license contract between Licensor and You

Thu Mar 12 16:42:03 UTC 2009

Hi Mike,

You've asked a rather detailed question in terms of what the law is on  
"clickwrap" and "browsewrap" agreements that not only brings in issues  
around, for example, terms of use on websites and their  
enforceability, but also around the contract/license distinction and  
even on the nature of the viral/copyleft/share-alike and open/free  
licences themselves.

A detailed answer to these questions would also be very jurisdiction  
and context specific, as there are differing approaches to the issue  
(civil versus common law; b2b versus b2c; and so on). As I'm sure you  
understand, I can't give that level of detail.

If you are looking at the United States specifically and want a bit of  
background, teaching this subject generally start with ProCD v.  
Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) and its progeny. Generally  
the United States leans much more towards a contract being formed in  
these situations (but note also that this isn't a license for use  
solely in the US).

If, as I suspect, this question is being asked in an effort to know  
how to implement the ODbL so as to strengthen the contract argument,  
then the answer is that any method that makes it clearer that "X has  
agreed to Y" strengthens the claim.  Examples would be clicking  
agreement for each submission, agreeing before access to an API, etc  
-- essentially a lot of the things that commercial companies do to  
protect their data/database/works/software what have you.

Instead of IANAL, this is IAALBIANYL

~Jordan

On 10 Mar 2009, at 19:17, Mike Collinson wrote:

> I ask this as a layman and as a question that has come up in the  
> OpenStreetMap community.
>
> The ODbL attempts to invoke a contractual as well as a copyright  
> license obligation.  As a deliberately naive question, does this not  
> require an explicit exchange of signed contracts between the two  
> parties?  Or at least a clickthrough acknowledgement by You along  
> the lines of a shrinkwrap agreement?  Is there precedent in the Us  
> or other jurisdictions for an implicit agreement (You Use the  
> database therefore you agree?).
>
> Regards,
> Mike Collinson
> OSM Foundation License Working Group
>
>
>
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> odc-discuss mailing list
> odc-discuss at lists.okfn.org
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____
Mr. Jordan S Hatcher, JD, LLM

jordan [at] opencontentlawyer dot com

More details at:
<http://www.jordanhatcher.com>

Open Data at:
<http://www.opendatacommons.org>