[odc-discuss] ODbL, choice of law, and "porting" (and why ODC won't have a porting process)

[Jordan S Hatcher]

Hi everyone,

I'm afraid that there may be some confusion over the choice of law  
clause within the ODbL (Section 10.4) and what it means for a "porting  
process" for the ODbL (and by implication the PDDL).

By way of background, Creative Commons has a process where it started  
out with a license closely based on US law that got used around the  
world. They then were able to build up contacts in various  
jurisdictions that "port" the standard CC licenses to their local  
jurisdictions.  This isn't a simple language translation -- it's a  
drafting of the CC licenses to fit specific local law.  The licenses  
for The Netherlands don't just translate it into Dutch, they match the  
principles to Dutch copyright and neighbouring rights law, for  
example. The Scottish CC project uses the CDPA in the UK as its  
baseline, and so on and so on.

After some time, CC drafted an "unported" license as a template based  
on general copyright treaties so as to move away from the US license  
being the "generic" CC license.  Though this is becoming a popular  
version of the CC licenses to use (for various reasons), even Lessig  
has referred to the unported licenses as "raw" (as in "raw meat") and  
pushed for use of jurisdiction specific licenses.

Even though most of the porting for each jurisdiction is done by  
volunteers (I participated in the CC-Scotland porting, for example),  
this process isn't free (as in beer) for both the jurisdiction and for  
CC. Each version went through a process coordinated by paid Creative  
Commons staff to ensure compliance and quality on the legal side --  
involving the CCi team in Germany and no doubt CC's general counsel.  
This is not to mention the costs for the flights for Lessig (now Joi  
Ito) to fly over for the launch events, the costs of having the launch  
events themselves, and any follow on infrastructure to maintain the  
licenses.

Looking back over this process, it's not clear (at least to  me) what  
the legacy is of this process.  Many people use the unported licenses  
(calling into question the utility of having jurisdiction specific  
licenses), and as the CC licenses have gone through successive  
versions, several (if not most) of the jurisdictions are behind the  
main version.

I can't do a detailed review of every jurisdiction (because of  
language differences and time), but a review of the English language  
licenses and my understanding from CC is that a choice of law clause  
is in very few of the ported licenses.  In fact, Scotland may be  
singular in having a choice of law clause.

An occupational hazard of being a lawyer is to always try to hedge,  
even a little bit, even when the chance are really remote.  So I can't  
say that unequivocally Open Data Commons will never go through a  
porting process similar to the one by CC.  But given the cost in both  
time and money that undertaking such a project would mean, as well as  
an unclear set of benefits for doing so, I see the chances of Open  
Data Commons doing a similar process as very very remote.

This is not to say that we won't explore and encourage _translations_  
of the text, which we've done at OKF with the Open Definition.

Thanks

~Jordan

____
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>