[odc-discuss] First Pass on ODbL Comments

[Rufus Pollock]

2009/3/24 Ulf Möller <usenet at ulfm.de>:
> Rufus Pollock schrieb:
>>
>> Officially the comments on have closed.
>>
>> That said if you can still send send them though -- probably best here
>> at this point.
>>
>
> I have a couple of remarks:
>
>
> Re "Who is the Licensor of a Derivative Database?"
>
> Please clarify: If entity B creates a derivative database, will B then be
> the Licensor of that database (but be restricted in their choice of license
> by clause 4.4), or will A still be the licensor?

B is the licensor of a derivative DB they have created but as you say
they will be restricted in what they can do by 4.4 -- it is just like
the GPL or by-sa ...

> Re "Internet distribution need not be free of charge":
>
> There is no free hosting at archive.org, and I doubt there is anyone where

Yes there is as I understand ... (and I personally have hosted data there ...)

> you can host files the size of an OSM planet file for free. Torrents are
> useful only when there are several people downloading at the same time. I
> realize that the license gives the option of distributing physical copies
> only, but distribution over the Internet for a reasonable fee might be
> better for all parties involved (and of course when free hosting is
> available, a fee of zero is reasonable).

Do you want to get into defining reasonable fee? If you are really
concerned about b/w you could limit people so you don't get maxed out.

> Re "Produced Works and free licenses":
>
> Compatibility with other free licenses is a major issue for OSM, see e.g.
> http://wiki.openstreetmap.org/wiki/Open_Data_License/Use_Cases#Use_of_maps_in_Wikipedia_and_Wikitravel

Right. The only issue here seems to be the reverse engineering clause
(which isn't saying your can't reverse engineer: just that the DB you
produce is equivalent to the original DB from which you made the
produced work then you need to share-alike). It sounds like you are
getting OSM's lawyer to look at this so that is great.

> Re "Comments from Creative Commons":
>
> The comment from Creative Commons is also available at
> http://wiki.openstreetmap.org/wiki/ODbL_comments_from_Creative_Commons

BTW: I assume these are comments from Science Commons not Creative
Commons since Thinh is at SC not CC and the protocol is SC's protocol
not CC's.

I really don't buy *any* of their arguments from the Protocol (and
have said this repeatedly). Read a recent summary that I posted here:

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

I'd also ask why the comments don't once consider the major benefits
of SA: namely that it helps build a shared commons by

a) ensuring that reusers share back
b) in so doing assuring original contributors that what they create
won't be "appropriated".

The concerns that motivated Stallman to draft the GPL (that work he
did would be appropriated and *not* shared back) are just as true for
data. There is a reason many of the major community based "open"
projects (Linux, Wikipedia, FreeDB, OSM) have used SA licenses.

To go through some of the issues in turn:

### Uncertainty

To reiterate comments in that blog post (and elsewhere): the only
person at all affected by 'uncertainty' is the licensor. The licensee
(the user) can get perfect certainty by just complying with the
license. For the licensor there is the potential that in some
jurisdictions they *may* be uncertainty over what rights they have in
the DB. But so what? If you don't have rights you've not lost anything
by putting the license on (what you've just done is put out a very
explicit set of community norms)!

Relatedly here is the text of the draft FAQ on the subject:

<http://wiki.okfn.org/wg/odol/odc/odbl#AreShare-AlikeProvisionsSuchasThoseintheODbLEnforceableInAllJurisdictions.3F>

<quote>
This is a license for data and databases, as such you the licensor
must be aware that any conditions you impose, such as Share Alike,
depend on:

  * EITHER: You having IP rights over the material (whether in
copyright, or database right)
  * OR: This license being considered a contract between you (the
licensor) and the user of the database.

The rights around data and databases haven't been harmonized
internationally to the same extent as copyright. As a result, the
on-the-ground protection of databases by law can vary significantly
country-by-country. In some jurisdictions, e.g. the EU, the relevant
"DB" rights certainly do exist, while in others, e.g. the USA, the
situation is less clear.

It must therefore be emphasized that where '''neither''' of the
afore-mentioned conditions hold this license will obviously have no
power. We would however point out that, in such circumstances, clearly
no other approach can do better (since ''no'' license, no matter what
it is, will bind). As such nothing will have been lost (the only real
alternative would be not to make the database available -- which is
likely to be counter to your basic aims!).

To summarize:

As a Licensor: this license will certainly apply in a good number of
jurisdictions (either via "rights" or contract). Where there is any
uncertainty about the existence of "rights" or a contract no other
approach can do any better and at worst this license becomes a very
clear statement of your "community norms".

As a User: all you need to do to have total legal certainty is to
comply with the terms of this license.
</quote>

=== Complexity ===

The arguments about complexity and difficultty for non-lawyers I also
don't understand. The GPL are the CC licenses are all about this
length. Human-readable summaries can be easily provided (though I
would note they never deal with every edge-case -- for example if I
copy the structure but not exact text of your code do I need to comply
with the GPL or not etc etc).

=== Transaction Costs ===

Comments about transaction costs really relate to previous points --
and again I don't understand how "data is different" (to the extent
that PD is better for transaction costs than SA licenses this is true
for content and code but Wikipedia and Linux have both used, and
benefitted, from share-alike licenses ...).

=== Non-Interoperability ===

On non-interoperability I again point to content and code. The
situation is exactly analogous. In all areas ensuring your material is
PD will ensure maximum interoperability -- but no-one seems to be
arguing this is a compelling reason to abandon the GPL or CC by-sa.
Every time we have anything beyond PD dedication/license, be it
attribution or share-alike, there is some chance that interoperability
is affected. However, we must weigh that (probably very minor risk)
against the benefit of providing those assurances to the creators of
those community resources -- be that a reassurance of "credit" or that
others will reciprocate their openness.

I understand that Science Commons have strong views on this -- and I'm
happy for them to have them -- but I don't share them and don't see
why others should share them. Open code and open content both permit
share-alike -- with obvious benefits for specific communities -- and I
think it is more than permissible to do the same for data.

Regards,

Rufus