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

Mon Feb 9 14:22:29 UTC 2009

2009/2/5 John Wilbanks <wilbanks at creativecommons.org>:
> my laptop was stolen yesterday so i am pecking this out on a
> smartphone. apologies in advance for typos etc.

Sorry to hear that :(

> 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.

Yes.

> 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.

Not sure I follow here (perhaps typos).

> 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?

Because not planning does not mean it never happening (or the threat
of it happening not being important).

I also really don't understand the logic here. Court only happens due
to enforcement when people don't obey (and intentionally -- it is
extremely unlikely you are going to get in trouble for inadvertantly
failing to comply ...). I.e. it is important precisely when 'norms'
aren't cutting it ...

It seems to me that that the status of a the GPL as a license rather
than a norm has been important in getting compliance from some people
over time -- and more importantly in encouraging others to contribute
to GPL'd projects in the first place.

> 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.

I am not sure I really buy this. Code gets used across a lot of different areas.

Plus we are not talking about the whole governance of a discipline but
data sharing. Moreover we are also only talking about encoding 'open'
data across disciplines (and the only things we are possibly allowing
away from PD is attribution and Share-alike).

> 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.

But a) there is flexibility in licenses (look at attribution with CC
licenses for content and b) what about the flip-side (non-compliance)

> 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.

So I think we agree that whatever happens data access is going to be
covered by fairly formal documents that specify what you are supposed
to do. (So we should be clear that unlike most 'norms' these are going
to be fairly formalized).

Leaving aside the fact that there are going to patent-related issues
in this stuff anyway (pharma, business methods etc). Also I don't
understand how 'us' (the open data) community not using licenses and
IP prevents everyone else from doing so? If you are worried about
'trolling' in data then it is going to happen whether we use licenses
or norms or ....

Regards,

Rufus