[odc-discuss] Fwd: ITO World legal review of ODbL license 0.9

[Frederik Ramm]

Jordan,

Jordan S Hatcher wrote:
> I disagree with several of the points of the analysis, but will  
> respond more fully point-by-point later. Also, some of the points  
> apply to OSM's implementation specifically, which I won't address  
> (because I don't represent them in a professional capacity).

For me, as a concerned OSM project member, this "I am a lawyer but I am 
not your lawyer" business is very disturbing.

I am perfectly clear that there are professional reasons for this, but 
let me just tell you how this looks from the ordinary OSM project 
member's view.

There is a guy who creates a license. His legal credentials are good 
enough and his arguments convincing enough that he manages to get the 
OSM Foundation to believe his license is good for their cause.

The OSM Foundation then provide some input and help him improve the 
license which leads to a draft. The OSM Foundation then get another 
lawyer to review and provide more feedback, leading to an improved draft.

The OSM community now finds a number of problems with regard to applying 
this license to OSM, but the lawyer who has developed the license and 
who was somewhat instrumental in leading OSMF to believe that there is 
indeed a way to have a working share-alike license for our data (as 
opposed to the Science Commons view that all data should be CC0 because 
nothing else works), now refuses to talk about these issues, saying 
instead: "I only provide this general license; it is up to you to decide 
whether or not this meets your needs."

You may or may not know this, and arguably it is not your fault, but the 
OSMF "license working group" sees itself as mainly an "implementation 
working group", i.e. they see their job as driving the implementation 
process, not so much evaluating the license and/or working on it 
conceptually.

This means, again to the ordinary project member, that we're in a 
strange kind of limbo. There is this license; there are these problems; 
and what we would really really need is someone to defend the license to 
us, someone who takes the perceived issues, understands them, evaluates 
them against the license and then says one of "yes this is a problem but 
if you want the license you will have to live with this and you have to 
make up your minds", or "no this is not a problem, just a 
misunderstanding on your part and it is safe to assume that judges all 
over the world will not have the same misunderstanding that you had", or 
"well this might be a problem but it could be fixed by slightly changing 
the wording and/or accompanying the license with a second document", or 
whatever.

There is currently nobody in OSM to take on this role, lawyer or 
non-lawyer, paid or unpaid. And you, as the primary license author, take 
every possible precaution not to be helpful. Even really really major 
items like the use<->convey issue we have highlighted, which for OSM 
means a giant difference (a difference between, I assume, the license 
being palatable to the wider community and being rejected) is only met 
with a shrug from your side. (I would have thought that the question 
whether or not a Derived Database has to be shared when Produced Works 
are built on top of it would also make a difference to other potential 
users of the ODbL, to me this is a major conceptual issue and not 
something that can be changed lightly.)

So, again, I perfectly understand that professionally you cannot be 
bothered to "sell" the ODbL to OSM. But currently I perceive a very high 
risk of ODbL to be rejected by the OSM community for the very reason 
that there is nobody willing to engage in a serious debate.

It would be sad to have to say: "ODbL would have been a good choice for 
OSM but nobody managed to explain it to them."

Bye
Frederik

-- 
Frederik Ramm  ##  eMail frederik at remote.org  ##  N49°00'09" E008°23'33"