[odc-discuss] ODbL /BY-SA

Jordan S Hatcher jordan at opencontentlawyer.com
Tue Jul 27 16:35:13 UTC 2010

Hi Rob

On 26 Jul 2010, at 22:30, Rob Myers wrote:

> Hello to the list.
> I have a newbie question about the ODbL that I hope it's OK to ask here.

Of course!

> If I produce a BY-SA work from DbCL-covered data in an ODbL-covered database (I assume this is allowed by DbCL 2.1) is the resulting work a Produced Work under the terms of the ODbL?

I'm a bit confused -- do you mean and ODbL database that uses the Database Contents License (DbCL) for the contents?  FYI the DbCL isn't in 2.1 -- it's still in 1.0, which is why I have the confusion.

As background, the DbCL acts as a backup to clear IP rights that may be present in the *contents* of a database.  I like to describe it as a layer cake, with one layer the "database layer", which has the copyright/database rights/contract stuff of the ODbL, and the other is the "content layer", which can be anything from Flickr images to lat/longs.

The DbCL is meant to only be an option if the ownership of ALL of the content of a database is homogenous, that is, it can be covered by one single license.  You couldn't use the DbCL for example for a database of images with multiple different creators under different licenses (CC-BY and CC-BY-SA for example).

> If so, how does clause 4.6 of the ODbL ("If You Publicly Use a Derivative Database or a Produced Work from a Derivative Database, You must also...") not clash with BY-SA 3.0 Generic 8e ("This License constitutes the entire agreement...") for downstream users of the Produced Work?

If you take an ODbL database, and produce some content from it (i.e., run a query, out pops some data), this is a Produced Work. 

If you take the Produced Work and then add in your own mojo ("original expression" in a copyright law sense) and out pops this new thing, which is a combo of your own stuff (the aforementioned "mojo") and someone else's stuff (the Produced Work).  This is a layer cake too, lovingly rendered in ASCII:


The Produced Work could be OSM data for example, and the Mojo a PDF map based on that data.

Without going into too much legal background, Clause 8e (and similar clauses in many many other contracts/licenses) is bit of boilerplate designed to address something called the Parol Evidence rule, which is all about only having the written contract be the binding agreement between parties.  As a legal rule, it's generally designed to keep people from arguing that the parties to a contract orally said some sort of variation to the written version at the time of signing. Basically it tries to make the written version binding.

Thinking about it, that was probably too much legal background.  :-)

The really simple answer IMO is that Clause 8e addresses "the entire agreement" ONLY between the parties to that agreement, which in the case outlined above is the "mojo creator", who is the Licensor of their CC content under the CC-BY-SA license and not the ODbL licensor, who can be someone completely different and isn't a party to this agreement. It's the "mojo" that's licensed.

Otherwise you as licensor of a CC-BY-SA work could potentially be giving a *warranty that there was no other licenses over the work, which is something CC tried at one point and then dropped. It's a big deal because it means you would be on the hook for liability if you got it wrong.




> If not why not? :-)
> Thanks.
> - Rob Myers.
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Mr. Jordan S Hatcher, JD, LLM

More at: <http://www.jordanhatcher.com>
Co-founder:  <http://www.opendatacommons.org>
Open Knowledge: <http://www.okfn.org/>

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