[open-science] Openness and Licensing of (Open) Data

John Wilbanks wilbanks at creativecommons.org
Thu Feb 5 16:42:13 GMT 2009

my laptop was stolen yesterday so i am pecking this out on a
smartphone. apologies in advance for typos etc.

i think we have hit the key point on nrms v licenses. they will indeed
encode the same things and create similar problems. the difference is
that licenses further encode the right to obtain a prelinary
injunction for violation, and norms do not.

1. it is easy to imagine that in 14 we have very valuable data web,
and that a db under the eu directive is in there and the owner wants
value now. a lawsuit under ip has the power to bring down lots of
other stuff. this is a very plausible future under a licensing regime
but impossible under a normative regime.

2 the involuntary infringer is liable for damages under licenses, even
if she was not the person who removed attribution or sharealike
clauses two steps back in the data web. if there is monetary value to
be had, this is going to happen. endorsing open licenses = endorsing
enforcement, even is the intent is not to go to court. and if we don't
plan to go to court, why even allow the chance for this?

3. fragmentation. data disciplines vary much more than software. their
norms swing wildly, as do secondary regimes like privacy. creating the
idea that one or two licenses suffice doesn't reflect this - it will
force disciplines to choose between their norms and technolegal
interoperability. and if the norms all get encoded in their own
licenses we will indeed see fragmentation. this scenario also means
that cross discipline mashup will be legally difficult.

norms allow for formal encoding but informal punishment. this
flexibility, when we don't know how this will all play out, just seems
a more wise choice to me. it lets experimentation hapen without fear
of lawsuit, and lets each community encode its ideals without breaking
the power to integrate it al.

in geneal, my instinct is that it is fine if these things *look* like
licenses, as long as the enforcement is not in the courts. we create
enormous potential for negative effects by using ip and courts, for
little return. if i were evil i would be al over setting up a data
troll business, use some easter eggs, and sue for revenue in about
five years. makes patent trolling look like simple street robbery.

On 2/5/09, Rufus Pollock <rufus.pollock at okfn.org> wrote:
> As your comments are going to be public on your blog soon, hope you
> won't mind me cc'ing the open-science mailing list on this.
> 2009/2/4 Michael Nielsen <mnielsen at perimeterinstitute.ca>:
> [snip]
>> I think it's an excellent article, and agree with a great deal in it.
>> However, there are three basic points at which I feel we have some
>> disagreement:
>> (1) I think the article underrates the problems that may be caused by
>> licensing incompatibilities - witness all the problems this has caused in
>> the open source world, where the commons has fragmented;
> There have been occasions where license incompatibilities have been an
> issue but I am not sure I'd agree that the 'commons has fragmented' in
> open source. Do you have specific cases in mind?
>> (2) I think the article takes for granted that scientists are going to
>> want
>> open licenses.  I don't see that this is necessarily true, certainly if
>> current norms are encoded in the license; and
> I quite agree with you so I think there's a misunderstanding! I'm not
> sure either that many scientists or other scholars will -- at least at
> the beginning. 5 years experience of talking with people on this has
> definitely taught me that :)
> The question I would ask to you here: if encoding current norms
> regarding data in licenses is a problem then encoding them in explicit
> community norms is also a problem (and if we're not explicit there are
> going to be serious problems ...).
>> (3) the article implicitly assumes that the license (not the norm) is how
>> enforcement will be handled, yet I think there is little evidence to
>> suggest
>> that this is true in academic science, where norms are far more often the
>> remedy of choice.
> Let's be clear: most open licenses whether in software, content or
> anywhere else aren't 'enforced' (and won't be enforced) by recourse to
> the courts. Like norms licenses will be primarily enforced by social
> pressure. Saying use licenses isn't saying: let's settle all our
> disputes in courts! Much of the time a license is just a way to make
> explicit what the 'social contract'. But it has the added advantage of
> potentially being enforceable against those who might ignore the
> social norms (I give other reasons in the essay so won't rehash them
> again here).
> So again perhaps there is a misunderstanding: I see (open) licenses as
> a convenient and explicit encoding of what people can do with stuff
> (with the added advantage that, in extremis they are 'legally'
> enforceable).
> Lastly, I should emphasize that I'm assuming throughout here that
> we're talking about licensing for 'data' -- *not* about the governance
> of the community as a whole, which, though partially related, is a
> different and much larger matter.
> Regards,
> Rufus
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