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

[Rufus Pollock]

To follow up Jordan's comments ...

2009/3/14 Frederik Ramm <frederik at remote.org>:
> 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.

We want to help as much as we can. However, Jordan being a lawyer has
to be careful about whether he is giving you or OSM specific legal
advice (for which he is then legally responsible ...).

> 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.

Meanwhile that lawyer (Jordan) continues to donate vast amounts of
unpaid pro-bono time in preparing these drafts, responding to comments
etc etc :)

> 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

I really don't understand these arguments about CC0 being the only
option from SC. I've written a lengthy set of comments on this (and
posted about this to this list) but to reiterate here are the links:

<http://blog.okfn.org/2009/02/09/comments-on-the-science-commons-protocol-for-implementing-open-access-data/>

<http://blog.okfn.org/2009/02/02/open-data-openness-and-licensing/>

In a nutshell argument seems to be that there is uncertainty as to
what rights you may have in some jurisdictions and when they apply.
But so what?  Where you do have the rights you can do share-alike and
where you don't have the rights either contract kicks in or if it
doesn't there was nothing you could have done anyway (other than never
giving out the DB -- which rather defeats the purpose).

> instead: "I only provide this general license; it is up to you to decide
> whether or not this meets your needs."

I think we need to be clear here:

We can't define or make precise OSM's needs. That's up to the OSM community.

We can (try) to answer (and have been) questions like: will the ODbL
mean X in situation Y?

> 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.

There is a pro-bono OSM lawyer as I understand it. Would it also make
sense for the OSM community to select someone (or someones) to be in
charge of doing this kind of evaluation and conceptual work.

> 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.

I very much sympathise with your concerns :)

I think we will be able to answer some of these type of questions
either by modifications to the license or in FAQs. So far there have
been very few questions asked here (or in fact on co-ment) that we are
not able to answer in the ways you suggest.

> 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

I don't think is fair: Jordan has attempted to answer (or said he will
answer) wherever he can but has also made clear that there are some
questions that go outside his scope.

> 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

A shrug??? This was immediately acknowledged and there was intense
discussion  from which it was unclear that there was some uncertainty
as to what the consensus position was within OSM. We are proceeding on
the basis that the original Use approach was the preferred one. On
that basis I think it is the plan to return to that original approach
-- though of course we are waiting until the end of the comments
period so as to allow everyone to voice their views.

> 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.)

To go back to the original discussion there are two really distinct issues:

a) What OSM and other potential users *want*. We can't help very much
here since this is a choice for you :)

b) Implementing that in the license. That is up to us and we plan very
much to follow the preferences indicated to us :)

Again I'd suggest OSM propose someone for the ODC Advisory Council as
this would help ensure that a) and b) are linked to everyone's
satisfaction.

> 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.

What is required here? As far as I can see all questions asked here
have been responded to in a timely manner and we are in the process of
going through all the comments on co-ment responding to them.

If there are specific questions that need clarification please post
them here and we'll do our best to respond ...

> 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."

It would indeed -- for all concerned :)

Rufus