Open Database License Discussion

Contents

  1. Open Database License Discussion
  2. Comments
  3. Task List: 2009-03-19
    1. General (Minor)
    2. License Specific
      1. Minor + Typos
      2. "Publicly Convey" versus "Use" as Trigger for SA - DONE
      3. Clarify "Publicly Convey" - DONE
      4. Distinction between contents and database - DONE
      5. SA and Later/Compatible Versions (s4.4) - DONE
      6. Definition of Substantial - DONE
      7. 4.6: making available of derivatives - DONE (?)
      8. 9.0: Termination - DONE
      9. DB Rights, Contract and Enforceability - DONE
      10. Choice of Law - DONE
  4. FAQs
    1. Are Share-Alike Provisions Such as Those in the ODbL Enforceable In All Jurisdictions? - DONE
      1. Indirect acquisition problem
      2. Suggested text
      3. co-ment Comments

Comments

If you have comments on the ODbL which you don't want to submit on co-ment please add them here. Specific textual amendments will receive much more attention than general critiques.

Task List: 2009-03-19

General (Minor)

  • Structural questions as to legal advice and JH role in project
  • Drafting approach - a note on the general approach used in drafting the ODbL
    • more detailed history of ODbL and Open Data Commons (more detailed than that currently on ODC About Page)
  • Facts, data, and databases - statement around how all these fit together
  • ODbL for community projects and aggregation of individual contributions

    1. 'Rights' in each contribution => apply ODbL to each contribution and project licenses under ODbL

    2. Contributions are too small to have rights but aggregation is a DB: still do same thing as there is a contract between contributor and community organization and organization then licenses under ODbL.

License Specific

Minor + Typos

  1. Typos: (several people)

    • WONTFIX Licence -> License

    • DONE Couple of minor ones at end

  2. WONTFIX License URI: no change need?

  3. DONE Rename title of 4.5: "Share-Alike Does Not Apply" to "Limits of Share-Alike" (Richard Fairhurst)

  4. NOT DONE Applying the license (Richard Fairhurst) (NB: not part of the license)

    • "we suggest you attach the following or a similar notice"

  5. DONE Change to Licensor rather than Copyright Holder in application section (Michael Collinson)

    • For the avoidance of doubt, should the name of the Licensor be more explicitly identified than just as the copyright holder? The license has contractual and database right aspects as well as just copyright.

  6. DONE Clarify "you" in preamble

"Publicly Convey" versus "Use" as Trigger for SA - DONE

  • DONE 2008-04 version has "Use" and our understanding is that this is preferable and so plan to revert to this

Clarify "Publicly Convey" - DONE

  • DONE Need to be clearer about meaning of "Publicly" in "Publicly Convey"

Distinction between contents and database - DONE

  1. DONE License: Change Data -> Contents in 1.0

  2. IN PROGRESS FAQ

    • For e.g. OSM no essential difference (since individual facts have no protection all that matters is DB)
    • DB of photographs: rights in DB and individual copyrights in photos
    • ODbL+ approach: ODbL for DB + license for contents
      • Contents license could be e.g. CC by-sa or Factual Info License or ...

SA and Later/Compatible Versions (s4.4) - DONE

  • DONE Need to clarify what later/compatible would mean.

  • CC have their (undefined?) "Creative Commons Compatible License".

    • "You may Distribute or Publicly Perform an Adaptation only under the terms of: (i) this License; (ii) a later version of this License with the same License Elements as this License; (iii) a Creative Commons jurisdiction license (either this or a later license version) that contains the same License Elements as this License (e.g., Attribution-ShareAlike 3.0 US)); (iv) a Creative Commons Compatible License."

  • While preserving flexibility need to ensure that:
    1. Incompatibility does not creep in
    2. No "end-run" round the key license elements

Result: use proxy language based on GPL

Definition of Substantial - DONE

4.6: making available of derivatives - DONE (?)

Addition of "or the method of making the alterations to the Database (such as an algorithm)"

9.0: Termination - DONE

See s8 of GPL:

You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License (including any patent licenses granted under the third paragraph of section 11).

However, if you cease all violation of this License, then your license from a particular copyright holder is reinstated (a) provisionally, unless and until the copyright holder explicitly and finally terminates your license, and (b) permanently, if the copyright holder fails to notify you of the violation by some reasonable means prior to 60 days after the cessation.

Moreover, your license from a particular copyright holder is reinstated permanently if the copyright holder notifies you of the violation by some reasonable means, this is the first time you have received notice of violation of this License (for any work) from that copyright holder, and you cure the violation prior to 30 days after your receipt of the notice.

Termination of your rights under this section does not terminate the licenses of parties who have received copies or rights from you under this License. If your rights have been terminated and not permanently reinstated, you do not qualify to receive new licenses for the same material under section 10.

DB Rights, Contract and Enforceability - DONE

DONE Plan addition to FAQ. See draft on wiki.

Choice of Law - DONE

Unchanged (follows CC unported clauses) and will have an FAQ.

FAQs

OSM items:

Are Share-Alike Provisions Such as Those in the ODbL Enforceable In All Jurisdictions? - DONE

This is now in FAQ at http://www.opendatacommons.org/faq/licenses/

Several people have had added comments on co-ment that relate to this issue see below). In particular, Speight raised issue of US situation.

It is clear that this issue needs to be explicitly and directly addressed. First stop should be Open Data Licensing Guide. Situation in US re. 'rights' in DBs is not completely clear (see section in the Guide). Contract, is then a fallback position, which can operate irrespective of those rights. However, particularly for an open project, may be problems of enforcement due to indirect acquisition problem (see below). Trying to address this through e.g. clickthroughs may create serious burdens on reusers and others that outweigh any benefits (indirect acquisition can still be a problem).

Indirect acquisition problem

  1. B acquires DB from A by accepting some license (so contract formed)
  2. C then acquires DB from B.
  3. B however has failed (intentionally or unintentionally) to ensure C accepts license.

At this point: A can do things to B (with whom A has a 'contract') but may not be able to do anything about C (with whom A has no contract).

Suggested text

Summary

As a Licensor: this license will certainly apply in a good number of jurisdictions (either via "rights" or contract). Where there is any uncertainty about the existence of "rights" or a contract no other approach can do any better and at worst this license becomes a very clear statement of your "community norms".

As a User: all you need to do to have total legal certainty is to comply with the terms of this license.

Details

This is a license for data and databases, as such you the licensor must be aware that any conditions you impose, such as Share Alike, depend on:

  • EITHER: You having IP rights over the material (whether in copyright, or database right)
  • OR: This license being considered a contract between you (the licensor) and the user of the database.

The rights around data and databases haven't been harmonized internationally to the same extent as copyright. As a result, the on-the-ground protection of databases by law can vary significantly country-by-country. In some jurisdictions, e.g. the EU, the relevant "DB" rights certainly do exist, while in others, e.g. the USA, the situation is less clear.

Where neither "DB" rights or a contracts exists no license -- be this or another one -- will be enforceable. If this is of concern to you your only real alternative is to not make the database available.

co-ment Comments

abunai: How does the license protect the content if someone gets hold of the the non-protectable data without first agreeing to the contract? This license doesn't prohibit giving the data to someone else who hasn't entered into a contract before. Even if it did, what could be done if someone uploaded the data to a filesharing site? (They'd be in breach of their contract, but those who are just downloading the data aren't doing anything illegal when the file isn't copyrighted.)

Speight: As worded, I don't think that the notice clearly creates a binding contract in any jurisdiction. It can be interpreted as no more than an offer to license under a particular set of terms. With the GPL, this kind of offer works much better because it is illegal to redistribute or create a derivative work (i.e. partake in any of the actions the license aims to restrict) without being given permission by the copyright holder. In other words, if the end user does not accept the license, they can't legally violate the license's terms.

Because laws relating to databases vary more widely by jurisdiction, this kind of default enforcement may not work with this license. In particular, I think that the only mechanism one would have in the U.S. to limit what a non-licensee user of the database can do is copyright, which is probably not enough, since facts are generally not copyrightable. In the U.S. copyright applies only to the selection and arrangement of collections of factual data, not any of the facts themselves. Where the bar falls here is not completely clear; it depends on the amount of originality and creativity concerned. See http://en.wikipedia.org/wiki/Feist_v._Rural and http://en.wikipedia.org/wiki/Trivial_Pursuit#Fred_Worth_lawsuit.

This is not to say that such data is not licensed in the U.S., only that providers of such data make customers sign a contract limiting their rights to reproduce and redistribute such data before they hand over the database. If a provider of ODbL data requires people to consent to the license before downloading all or part of the database, that's probably enough (much as I hate clickthroughs). Of course, redistribution could then be a problem; you'd also have to require people to get the same consent to anyone they redistribute the database to. Viral licensing is tough to make work if the only hook one has is contract law.