[odc-discuss] ODC-BY a share alike license?

Fri Feb 10 15:26:05 UTC 2017

Hi Maurizio

On 10 February 2017 at 05:13, Maurizio Napolitano <
maurizio.napolitano at okfn.org> wrote:

> I received an email from a lawyer

But not a lawyer familiar with open source it seems.

> who claims that the text of the
> ODB-BY license has a clause which falls under the concept of
> share-alike.
>

> But, according this schema, the license is not a SA
> http://opendefinition.org/licenses/
>
> The issue is related on this side of the text license
>
> “If You Publicly Convey this Database, any Derivative Database, or the
> Database as part of a Collective Database, then You must:
>
> a. Do so only under the terms of this License;” (followed by
> other conditions, but for this discussion only the first condition is
> relevant)
>

> [source:
> https://opendatacommons.org/licenses/by/1.0 ]
>

I don't agree that for the purposes of this discussion only the first
condition is relevant. The remaining conditions are

b. Include a copy of this License or its Uniform Resource Identifier (URI)
with the Database or Derivative Database, including both in the
Database or Derivative Database and in any relevant documentation;

c. Keep intact any copyright or Database Right notices and notices
that refer to this License; and

d. If it is not possible to put the required notices in a particular
file due to its structure, then You must include the notices in a
location (such as a relevant directory) where users would be likely to
look for it.

So in other words you can use the database only if you keep notices that

tell any subsequent user that the database vests in a certain person

and that the person has licensed it under this license.

How is this different in principle from the MIT software licence?

https://opensource.org/licenses/MIT

MIT stipulates:

"Permission is hereby granted, free of charge, to any person obtaining a
copy of this software and associated documentation files (the "Software"),
to deal in the Software without restriction, including without limitation
the rights to use, copy, modify, merge, publish, distribute, sublicense,
and/or sell copies of the Software, and to permit persons to whom the
Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in
all copies or substantial portions of the Software."

In both the copyright (software or database) in the original is retained by
the person who issues the license. If the database is still "owned" then
use must be under an exception or it must be licensed. But if use is under
a license then it must be under the terms of the license.

Even if the license gives permission for any use and doesn't state any
explicit conditions use is only in accordance with the conditions of that
license which at the least include the implicit condition that the
copyright continues to vest in the licensor. Similarly it is useable only
in terms of the licence.

The only way to avoid imposing any conditions at all is to free the
database into the public domain in a jurisdiction that allows you do to
that. To do this one would use CC 0, or Open Data Commons Public Domain
Dedication and Licence <http://opendefinition.org/licenses/odc-pddl>
(PDDL). Some jurisdictions limit the freedom of creators to free works into
the public domain and in those an extremely permissive license operates.
The conditions of the ODB-BY license are that someone who makes certain
uses of something licensed under it keeps intact notices that the licensed
database is "owned" by a particular person and that is being used under the
ODB-BY license. Both of these would be true of the database even if there
were no notices, the condition is simply to tell others these two things
about the database in some contexts.

It is difficult to see how this can be described as copyleft. The wording
is unfortunate since where it states:

“If You Publicly Convey this Database, any Derivative Database, or the
Database as part of a Collective Database, then You must:

a. Do so only under the terms of this License;”

Taken out of context it could be construed as stating that the Derivative
or Collective Database must be under the OBD-BY license. That however is
not what it says.

It says that conveying is subject to the terms. When one takes a look at
the terms one sees what "under the terms" means in context. It simply
imposes a requirement that the Derivative or Collective Database must
identify that it contains data that is still "owned" by the person
identified in the notice and that that person licensed the portion that he
or she "owned" under the OBD-BY.

While I would avoid using the phrase "under the terms of this License" if I
were drafting a license it is not so ambiguous as to change the operation
of the license from that intended by the drafters, which was to create a
permissive database license.

I am a lawyer but this is certainly NOT legal advice.

Andrew Rens

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