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

Jonathan Rochkind rochkind at jhu.edu
Mon Jan 24 16:39:39 UTC 2011

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.

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.

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 
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.

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