[odc-discuss] Summary of main action items re ODbL license beta

[Frederik Ramm]

Rufus,

Rufus Pollock wrote:
> Please find below a summary of what we take to be the main action
> items in relation to the ODbL beta.

On

http://wiki.openstreetmap.org/wiki/Open_Data_License/Suggested_Changes

we (=OSM community) have identified four important things that we think 
need changing. I think you have addressed #1, #2, and #4 (but would very 
much like you to cross-check), but I cannot see any reference to our 
item #3 which deals with the question whether a Produced Work can be 
released under an existing share-alike license or whether the reverse 
engineering clause does not permit that.

I don't know whether this was an oversight on your part or whether 
nobody actually put this on co-ment. For your (and other mailing list 
readers') convenience I attach that item below in full.

Note that item #3 carries three different "possible solutions", of which 
the third is basically "do nothing because it is not a problem". If ODC 
are of the opinion that this is a "do nothing because it is not a 
problem" issue then it would be very important to explain why.

This issue has been hotly debated in OSM circles, e.g.

http://lists.openstreetmap.org/pipermail/legal-talk/2009-March/002193.html 
("Reverse-Engineering Maps and Share-Alike licenses").

and

http://lists.openstreetmap.org/pipermail/legal-talk/2009-March/002176.html 
("Are produced works anti-share-alike").

I'm not speaking for OSM officially but I think that it is extremely 
unlikely for the OSM community to settle on a license that would make it 
impossible to create a map where OSM data is combined with e.g. CC-BY-SA 
material. One of the key selling points of the new license, 
OSM-internally, has been that we have greater liberty with Produced 
Works; if that liberty would turn out to exclude share-alike, the 
promise would ring hollow.

Bye
Frederik

           -------------------------------------------

The "licensing Produced Works" problem

We have assumed that by relinquishing control of Produced Works - which 
under CC-BY-SA would have had to be licensed CC-BY-SA and nothing else, 
whereas we now basically say "anything you want" - we increase 
compatibility with other licenses. For example, with CC-BY-SA it was 
impossible to combine OpenStreetMap data and CGIAR altitude data into 
one image because CGIAR was "non-commercial" and the resulting image 
would have had to be under CC-BY-SA (which would have allowed commercial 
use).

This problem is mostly solved with ODbL (an OSM-CGIAR combination is now 
possible) but there is uncertainty about what happens if the "other" 
license is of the share-alike variant (e.g. CC-BY-SA or GFDL). These 
licenses do not permit the addition of any restrictions, but ODbL has 
the 4.7 "Reverse Engineering" clause which restricts the use of Produced 
Works by saying that if a Database is created from them, ODbL again 
applies. If OSM data is combined with something else that is CC-BY-SA, 
then the resulting product would have to be CC-BY-SA, and this does not 
allow us to add the "but if you reverse-engineer..." restriction.

Possible solution #1: Explicitly allow popular SA licenses

One possibility is to explicitly allow Produced Works to be under these 
licenses, thus potentially overriding the reverse-engineering clause:

     * Add to 4.7: "This provision shall not prevent Produced Works from 
being licensed under any of the following Share-Alike licenses: GNU Free 
Documentation License 1.2 or later; GNU General Public License 2.0 or 
later; any Creative Commons license with the "Share-Alike" license 
element 2.0 or later; or any license deemed compatible to the above by 
the relevant issuing authority."

This would theoretically enable someone to e.g. make a tile server and 
serve OSM in CC-BY-SA licensed tiles, then re-trace data from these and 
claim to be immune from the reverse engineering clause because this was 
not mandated by CC-BY-SA; but he'd end up with a CC-BY-SA'ed copy of the 
OSM database which would not hurt us and not do him a lot of good 
compared to the effort involved.

Possible solution #2: Clarify scope of reverse-engineering clause

It is not clear whether the reverse-engineering clause was ever meant to 
apply to reverse engineering some levels down (i.e. someone grabs OSM 
tiles from our server and traces off of them), or whether it was only 
meant to keep one person or organisation from masterminding a reverse 
engineering effort. If the latter is our main objective then 4.7 could 
be reworded to make it very clear that it only applies to one and the 
same person first creating the Produced Work and then 
reverse-engineering the database from it:

     * Change 4.7 to: "For the avoidance of doubt, if you create a 
Produced Work with the intent of later recreating the whole or a 
Substantial part of the Data found in this Database, a Derivative 
Database, or a Database that is part of a Collective Database from the 
Produced Work, then the resulting Database is still subject to this 
Licence. Any product of this type of reverse engineering activity 
(whether done by You or on Your behalf by a third party) is governed by 
this Licence."

Possible solution #3: Difference between copyright/database right/contract

CC-BY-SA explicitly restricts only the "copyrighted Work". ODbL however 
works also by contract and database right. It may actually not be 
against the terms of CC-BY-SA to restrict reverse engineering by 
contract or by database right, while remaining fully compliant with 
CC-BY-SA in copyright terms.

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