[odc-discuss] Fwd: [OSM-legal-talk] LWN article on license change and Creative Commons

Jonathan Rochkind rochkind at jhu.edu
Tue Feb 1 18:21:58 UTC 2011

Generally I agree with what you're saying, although we disagree (as we 
know) about the proper course of action for our open access communities 
to take.

But I think you're misunderstanding what I'm suggesting. Here's my 
summary (sorry, it ended up long, trying to be clear) of the point I 
mean to be making, which may not be the point you think I'm making, heh:

Mike suggested that he (and perhaps CC in general) is much more 
favorable to solutions that "grants permissions whichcan be thought of 
as carve outs from copyright and related restrictions."  Which is what 
Creative Commons licenses as well as open source code licenses do -- 
assume copyright, then license people to do certain things otherwise 
protected by copyright, under certain condition. (That's what I meant by 
'CC-like solution' in this context -- solutions which assume material is 
protected by copyright, then the copyright owner licenses certain uses 
that would otherwise not be allowed).

Mike further wrote that he assumes "extremely dangerous until proven 
otherwise" solutions that instead "attempts to create new restrictions 
which arenot present by default".  That is, a solution that takes uses 
of content/data that would otherwise be allowed (because those uses of 
the content/data are not protected by copyright) and restricts them via 
a contract, such as a click-through contract.   My (possibly flawed) 
understanding is that the OSP solution is of this variety.

I agree with Mike on those two categories, and the relative desirability 
of them.

I am suggesting that, under current US law, a general purpose solution 
for 'data' that falls in the first category (assuming the law already 
restricts what you want to restrict, and then allowing exceptions 
through licensing)  is going to be difficult, if at all possible.  The 
second category is still possible, although has it's own limitations --  
not assuming the law restricts what you want to restrict, and instead 
imposing the restrictions by contractual agreement before you let 
someone have your data/content/stuff.

I'm not seeing anything in your comments that changes my mind about 
this, or, from my perspective, that  seems to address this point. It's 
true there is business in selling data and databases in the US -- my 
argument is that people in such business in the US, if they are legally 
protecting their data their data at all, are doing so by means of the 
second category -- imposing restrictions contractually, rather than 
counting on copyright or other IP law to already have restrictions, and 
then licensing allowable exceptions.

Of course, it's possible that I'm wrong and very clever lawyers could 
come up with ways to use solutions of the first category to protect data 
in the US.  But I doubt it from my (not a lawyer) understanding.

Of course, it's also possible that the communities involved could say, 
yeah, maybe we agree with Mike that solutions of the second category are 
less desirable (or maybe we don't), but if they're only way to 
distribute data with restrictions, then we're willing to use em anyway.  
It's a different argument we could have (which we may disagree on), on 
the acceptability/desirability for "open access communities" to work on, 
promote, or endorse solutions that rely on contractually adding 
restrictions, Mike's second category.  Personally I hope CC as an 
organization follows Mike's suggestion and shies away from such 
solutions, even if they are the only way to protect data in those ways, 
as I think they probably are in the US.

But my suggestion, which I still believe, is that it is going to be very 
difficult and likely impossible, in the US,  to legally enforce 
restrictions on data re-use _except_ by Mike's second category of 
"attempts to create new restrictions which arenot present by default" by 
requiring people to agree to contracts creating those new restrictions 
before they can access the data.

[Legal solutions of that contractual type, in addition to being 
something some of us don't like on principle, are also much less 
powerful. If you give someone access to your data only under such a 
contract, and they then give someone ELSE the data without making them 
sign such a contract -- you might be able to sue that first person for 
re-distributing your data in violation of your contract with them, but 
that second person is probably not legally bound by your restrictions at 
all, since they never signed a contract. So this type of solution is 
also not as powerful as the 'provider' would want (not saying 'owner' 
because they may not be legally, if it's not legally 'ownable' IP).]

Hope this too lengthy post makes my argument somewhat more clear.


On 2/1/2011 12:56 PM, Rufus Pollock wrote:
> On 1 February 2011 15:30, Jonathan Rochkind<rochkind at jhu.edu>  wrote:
>> You're right, it is a complicated legal terrain, esp in the US.
>> But I think most of the entities in the US "making and selling non-open dbs,
>> from geodata to legal decisions, from chemistry to restaurants" protect them
>> with contract law and licenses, not with Intellectual Property restrictions.
> I assume this is a response to my comment on your point about 'taking
> more databases out of the commons'. What I was saying was that the
> current situation in the US with its 'weak' IP "protection" for
> databases did not actually seem to make a lot of difference to the
> existence (r not) of a db commons as there are plenty of ways to
> protect the DB with or without this IP protection (to be fair this is
> a very difficult point to decide either way since we'd need to run a
> counter-factual with stronger, or weaker, protection).
> It is also possible that, in a world in which people can protect dbs
> effectively by means other than IP, giving people reasonably 'strong'
> IP rights around dbs actually encourages the commons since it allows
> people who want to share (but not have others "free-ride") a viable
> way to do this (and the stronger protections are helping anyone
> 'enclose' the commons since that is already possible by other means).
>>   That is, they are using the methods that Mike was somewhat resistant to use
>> -- binding people to contractual agreements that add restrictions not to
>> share the data, rather than relying on inherent intellectual property
>> protections against copying or use and then licensing certain uses, as CC
>> and open source licenses (which rely on copyright) do.
> That's possible -- just as many people using copyright also use access
> control etc. The point is those wishing to have closed stuff have
> plenty of ways for doing so ...
>> But yeah, it's really complicated.  In some cases , there are copyright
>> protections for databases in aggregate (it can be hard to predict if you are
>> one of those cases without going to court to see what the judge says, which
>> is not a great platform for a CC-like solution) --  but in many/most of
> Not sure what you mean by a 'CC-like' solution. Do you mean a solution
> involving licenses? That seems much broader (and older) than CC :)
>> those cases taking individual elements out of that data set and re-using
>> them for your own needs would not be protected by copyright. As I understand
>> it. Fortunately (hopefully), the CC has actual lawyers involved who are
>> expert at IP; if they can come up with some way that legal experts think is
>> defensible, under US law,  to protect general "data" through copyright
>> protections rather than use contracts (say, click-throughs) that impose new
>> restrictions by contractual agreement -- I'll be surprised.
> What do you mean by 'general data'? Surely that's the crucial question.
> If you haven't seen them already you may interested in my blog posts
> from a couple of years ago that talk about why use licenses on data:
> <http://blog.okfn.org/2009/02/02/open-data-openness-and-licensing/>
> Also these comments on the Science Commons / Creative Commons Protocol
> for Implementing Open Access Data -- the protocol recommended PD-only
> for data for a few reasons, reasons I generally don't agree with as
> you'll see from the post :) :
> <http://blog.okfn.org/2009/02/09/comments-on-the-science-commons-protocol-for-implementing-open-access-data/>
> Rufus
>> On 2/1/2011 8:31 AM, Rufus Pollock wrote:
>>> On 24 January 2011 16:39, Jonathan Rochkind<rochkind at jhu.edu>    wrote:
>>>> On 1/23/2011 1:32 AM, Mike Linksvayer wrote:
>>>>>   The issue is whether the instrument in question grants permissions
>>>>> which
>>>>> can be thought of as carve outs from copyright and related restrictions,
>>>>> or
>>>>> whether the instrument also attempts to create new restrictions which
>>>>> are
>>>>> not present by default. I assume the latter extremely dangerous until
>>>>> proven
>>>>> otherwise -- exceptions and limitations ought be increased, not
>>>>> diminished.
>>>>> Any public license that attempts to work around limitations had better
>>>>> have
>>>>> a truly massive and clear win for doing so.
>>>> I think you're absolutely right here -- but the problem with 'data' is
>>>> that
>>>> in general it is NOT covered by copyright (or, in general, any other IP)
>>>> in
>>>> the U.S.  So there is no way to 'carve out exceptions' from existing
>>>> protections -- there are no existing protections. The only way to make
>>>> restrictions is create new ones which are not present by default.
>>> Jonathan: you've got to be careful here. The US does provide for
>>> various kinds of 'protection' in relation to collections of data
>>> (termed a 'database' -- by definition -- in ODC licenses) -- of course
>>> this protection varies (and e.g. a plain telephone book may not
>>> receive protection) but such protection can exist.
>>> Furthermore no jurisdiction (i know of) provides monopoly protection
>>> in the form of IP rights for individual 'data' facts (e.g. London is
>>> long/lat x/y). It is the variety of meanings of the term 'data -- from
>>> individual (or small number) of items to large collections -- that
>>> makes using the simple 'data' in these discussions very confusing and
>>> why using the term database (for the collection) is probably a good
>>> idea.
>>>> This recognition, combined with an agreement with your analysis that it's
>>>> very dangerous to try and do this -- is one of the major factors which
>>>> led
>>>> so many entities looking at this before to arrive at the "public domain"
>>>> solution.
>>> Maybe but I don't really see why this necessarily leads to a PD
>>> solution (one can advocate a PD solution for many other reasons
>>> though).
>>>> There will be no way to apply a copyright-with-license solution to "open
>>>> access with restrictions" for data(bases) in the U.S. in the general
>>>> case,
>>>> because in the U.S. in the general case, according to current law,
>>>> data(bases) are not covered by copyright. (Unless the contents of the
>>> I don't believe this is correct as an analysis of the law in the US,
>>> at least as I understand it (and IANAL etc :) ), see:
>>> <http://www.opendefinition.org/guide/data/#us>
>>> There is particularly good overview of the case law here:
>>> <http://carrollogos.blogspot.com/2009/02/copyright-in-databases.html>
>>> Summary: yes the US does limit protection for databases in the wake of
>>> Feist but depending on the originality, structure etc the DB may get
>>> protection (see, as a clear example Red Book decision on a listing of
>>> used car prices).
>>> If there are any other experts out there with knowledge of relevant
>>> case-law please send it along (it can also get incorporated in that
>>> guide).
>>>> database are copyrightable 'content', in which case existing CC licenses
>>>> are
>>>> perfectly sufficient and there's no need for anything else -- the
>>>> different
>>>> legal status of 'data' in general vs 'content' is exactly why we're
>>>> having
>>>> this discussion). Of course, current law could change -- but we probably
>>>> don't want to be pushing for a legal change that takes more data(bases)
>>>> _out_ of the commons they are already in in the US, by applying IP
>>>> controls
>>>> to them!  That's not what "our side" roots for.
>>> I think we should be a bit cautious about drawing the exact lessons of
>>> the affect of DB rights on the commons.
>>> I remember talking at some length with a world-renowned expert of DB
>>> 'protection' and asking why the US did not have a DB law (after all,
>>> sad to say it, most of the time when big holders of info get together
>>> to get more rights they get them ...). His response was that most of
>>> the people with valuable DBs already could get sufficient protection
>>> via access control mechanisms etc and hence didn't see a lot of value
>>> in an explicit DB right -- I also note there are lots of people in the
>>> US making and selling non-open dbs, from geodata to legal decisions,
>>> from chemistry to restaurants.
>>> Rufus

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