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

[Neylon]

Hi All

I think we've come to the nub of the argument in as much as what we are
getting to is the gut response of each of us to licences. Rufus' perspective
I think comes out most in the paragraph

>> 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!

The problem is - that as soon as you call it a license then scientists will
largely assume that is exactly what you are saying, and that will provoke a
strong negative response. Call it a protocol, call it a standard, and people
will feel comfortable. Hint that it is contractual and potentially
enforceable and we will do two things. First run in the opposite direction
and second ignore the terms /because/ it is a license.

I visited a university department yesterday and three people separately
freely stated that they had done something technically illegal or in breach
of contract, followed up by the statement "so sue me". Flouting of the rules
imposed by admin and legal people can be a badge of honour in many
scientific communities.

John's view, and to a certain extent mine are summed up by:

> 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.

The issue here is not whether someone would actually do this - but that
scientists will immediately see the possibility and get disturbed by it.
Remember these are the people who assume that it is more likely that if they
make data available then someone will steal it, write up seventeen Nature
papers, and become a millionaire without crediting them, rather than someone
might make some modest use of it and credit them in the accepted way that we
generally do. 

It's an issue of control - if researchers feel they have ownership of this
protocol/standard then there will be fewer barriers to adoption. If there is
a perception that the protocol is "owned" by lawyers, which is what I
believe will happen if it is called a license, then there will be very
strong resistance. 

In my view our best chance of promoting best practice and "enforcement" is
through a protocol that funders choose to adopt for the research they
support. This is a much more powerful way of driving researcher behaviour
than through person to person contractual arrangements. I think this also
gives us the best chance of pushing through the idea that data and
collections of data should be explicitly placed in the public domain to
maximise the ability for re-use.

[Do we in fact agree on that incidentally? We haven't really touched on
whether we agree what the idea world would look like. I know Rufus feels
that share alike is acceptable but I don't know whether that means he thinks
it is on balance a good thing.]

[Is the mailing list published to web somewhere or should I repost this
somewhere? I'm very keen to keep the discussion out in the open as it were]


On 5/2/09 16:42, "John Wilbanks" <wilbanks at creativecommons.org> wrote:

> 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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> 
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