[odc-discuss] (no subject)

[Andrew Rens]

Francis is right. On a proper construction of the licence as a whole the
words "only under the terms of this License" mean no more than that the
Licensor grants the ODC-By database licence to every Licensee, there is no
sub-licensing.

In my opinion the phrasing is unfortunate because it can too readily be
misunderstood as requiring that Derivative Databases must be licensed under
ODC-By. An ill-advised court might read the licence in that way. In my
opinion this should be addressed, in the medium term in a new version of
the licence, and in the interim in the FAQ.

Thank you for working through this with me Francis.



On 27 March 2015 at 19:50, Andrew Rens <andrewrens at gmail.com> wrote:

> Thanks again Francis
>
>>
>> But I see that there is a reading, albeit in my view a rather strained
>> one, that says "under the terms of this License" means the same as "under
>> this License". In other words the modifiers "only" and "the terms of" are
>> unnecessary and are padding. Padding is always possible in contract
>> drafting.
>>
>> Now in English law a court would be reluctant to select such a meaning,
>> on the grounds that: (i) it makes less sense;
>>
> To be clear - it is not that I want the licence to read in this way.
> Instead as I worked through the licence this seemed to be the obvious
> reading. Of course what is "obvious" to one person may not be obvious to
> another. Trad route descriptions routinely make statements such as 'ascend
> the obvious crack' and then one finds oneself one pitch up the route and
> find that the crack is not obvious at all.
>
> Nevertheless I am concerned about the effects of this reading because I
> don't think it can so easily be dismissed.
>
> It may well not be an English court doing the interpreting of the licence.
> 10.4 of the licence stipulates "Choice of law. This License takes effect in
> and will be governed by the laws of the relevant jurisdiction in which the
> License terms are sought to be enforced."
>
>>
>> Your interpretation also does violence to other parts of the licence. Eg
>> in 4.4 the term "You may enforce any rights that You have over a Derivative
>> Database" is intended to make clear that a licensee may do what they please
>> with their own rights, selecting any licence they please. If the licensee
>> was required to license under ODC-By, then that term would not make sense.
>>
>
> I agree that counts against the 'use the same licence' reading. But does
> it count enough?
>
>> .
>>>
>>
>> I like to think I am fairly familiar with licences too :-).
>>
>
> No doubt :-)
>
>>
>>
> On distinguishing A's and B's:
>
> Frances wrote:
>
> Two points you might want to think about:
>
> (i) There will be circumstances where a Derived Database does not contain
> any of the originators IP - for example where it contains only an
> insubstantial contribution of the original work. Unusual, but possible. For
> example, if the original database had a very thin layer of database right -
> where the independent investment was only just "substantial" - a derived
> database might not have extracted sufficient data to amount to an
> extraction of that investment.
>
> Would you make this more concrete?
>
> A more common situation might be a translation or adaptation. The two
> principal ways of infringing database right (extraction and re-utilisation)
> are pretty strict. Creating an adaptation may well not be a re-utilisation.
>
> (ii) The obvious situation where this might matter is a mashup of some
> kind where a third party does not have any interest in A's data but only
> wants B's.
>
> This is really quite a common situation. I have quite a few clients who
> have databases of this kind. In the open data world this sort of
> combination is a very useful aspect of open data.
>
> If I understand you correctly then in both i. and ii it must be possible
> to distinguish A and B's data.
>
> People want to achieve different things with open data. PDDL and CC0 do
> particular jobs that not everyone wants. Many people do care about
> attribution, hence CC-BY and ODC-By. Others feel more strongly about
> enclosure of the commons and choose ODC-ODbL or CC-BY-SA.
>
> I agree that people are trying to achieve different things with open data
> - as a consequence my close reading of ODC-By which raised the question.
>
> Note that I wasn't one of the lawyers involved in drafting it (though some
> clever minds did get involved). It should also go without saying that none
> of this is legal advice by me - but of course for a fee I'd be happy to
> offer it :-).
>
> We need to come up with an acronym that is the equivalent of IANAL for
> those of us who are lawyers. Perhaps IAALBTINLAYHTPFT:
> I am a lawyer but this is not legal advise, you have to pay for that
> Wordy but then we have reputation to uphold.
> :-)
>
> Andrew Rens
>
>>
>
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