Ito World/ODbL Licence 0.9 legal review for ITO

This page consists of the verbatim advice from lawyers acting for ITO World in regard to ODbL| version 0.9 and the Factual Information License. The numbering is from the originial document, however the headings have been added by ITO.

Any text in block quotes is as recieved and should not be changed. There is however space at the end of every section where comments can be made and the issue raised can be discussed. Please sign any comments and indent in the normal way. Any important issues should be added to the Open Issues page for review by the Foundation lawyers and by the Open Knowledge Foundation.

The purpose of the review undertaken by the Firm is to report upon the draft Open Database Licence Agreement version 0.9 (the “ODbL”) in respect of its’ application to the Licensing of the OpenStreetMap database (the “Database”).

The review has been undertaken on behalf of ITO World Limited as a recipient and user of the OpenStreetMap Foundation (“OSMF”).

The opinions set out below focus on the broad structural and legal aspects of the ODbL. The Firm’s remit in undertaking the review has been to focus on key legal issues and to respond with constructive comments. This report does not focus on more minor issues or stylistic approach. Other recipients may have concerns regarding the ODbL of a different nature and should seek their own advice upon such issues.

The Open Database Licence Agreement

Overall Structure

There are a number of structural issues of concern.

1. Problems with current OSM DB

The ODbL purports to grant rights in the Database to users. As has long been recognised within the community, the grant of corresponding rights from contributors to the Database is at present is inadequate. The document referred to in the login section of the OSM website is the Creative Commons “Attribution - ShareAlike 2.0” (“CC-BY-SA”). This simple reference is insufficient. More to the point, the CC-BY-SA is a set of terms which licence a work (such as the Database) to a third party. The CC-BY-SA is not relevant in the context of regulating contributions to the Database.

The consequence of this is that the OSMF does not possess all the rights in the database which it purports to grant to users.

This is a fundamental issue and goes to the heart of whether the rights granted under the ODbL are sufficient for the users. It is essential that the necessary rights are granted by contributors to the Database so as to enable the OSMF in turn to grant the licensed rights under the ODbL. Failure to do this runs the risk that users of the Database will be infringing the rights of third parties and may face legal challenge for doing so.

This issue needs to be addressed by requiring contributors to agree to an appropriate set of terms and conditions. New contributors to the Database could agree to such terms upon joining and existing members could be required to agree by requiring a click through page to be navigated prior to making a contribution. After a certain period of time this latter requirement would eventually become redundant.

2. Uncertainty in the ODbL re which terms and conditions apply

There is considerable uncertainty in the ODbL as to which terms and conditions will apply to the use of the Database and what rights are being licensed.

In this respect there are a number of references to users determining for themselves which terms or rights apply. In particular, please see the Preamble, the last paragraph of clause 2.3, clause 2.4 and the last sentence in clause 3.3.

This continual reference to unspecified additional and/or alternative terms and conditions creates a central uncertainty in the ODbL and may well impact upon its’ enforceability. At the very least it affords ample scope to both users and the OSMF alike to argue that the terms of the ODbL are not applicable to certain classes of users or activities. From the prospective of a user relying upon these terms, this causes uncertainty as to the enforceability of the rights granted under the ODbL and whether at a later date they will face a claim that other (perhaps more stringent) terms apply to their use.

Additionally, this uncertainty leads to the possibility that some users will be able to circumvent the standard licence terms; for example, the share a like obligations.

These references to other terms should be removed. Where specific additional licences will be required this should be stated clearly.

• This seems to be a big issue for users of the data (such as ITO) and it would be far preferable for the ODbL to say that the only restrictions were those in the ODbL and on the attached notices, in the case of the OSM dataset there would be one attached notice which would be the FIL (or whatever it ends up being called). Contributors to the ODbL would sign up to terms that said that their contributions met those terms to make it all work together. PeterIto 15:06, 13 March 2009 (UTC)

3.Over reliance on database rights

Linked to point 2 above, the ODbL relies too heavily on database right. Copyright is briefly mentioned, but key aspects of copyright are also restricted in sections of the ODbL. Database rights may well apply to the Database, however, there must be considerable doubt on this point (particularly in light of several recent court judgements).

The wisest (and most usual) course of action would be to ensure that the ODbL covers all possible applicable rights, without over reliance on any single one. It would appear that the ODbL had originally been drafted with a very different type of database in mind to that of the OSM Database. Possibly intended for use with databases containing references to contained copyright works (such as film clips, art works etc.).

In this respect the ODC Factual Information Licence v0.9 referred to in the announcement by the OSMF, is unhelpful. The rights granted by this Licence are more limited than those in the ODbL and the rights and obligations are not framed in the same manner, thereby leading to some conflict between the provisions of both agreements. Such conflict would cause obvious difficulty.

This is easily remedied by the application of a broader definition of rights, the removal of specific restrictions relating to copyright in particular and a reworking of the definition of “Database” to exclude the appropriate class of individual copyrighted works which are held within (but do not form part of) the Database. The current definition of Data is too wide to achieve this purpose.

4. Neeed for clear distinction between role of Licensee and Licensor

There needs to be a clear distinction between references to the licensing of the user by the OSMF and the onward distribution of the Database, in whole and in part, by the user to third parties. Currently the same language is used to describe these two relationships, which leads to confusion as to the meaning of certain provisions.

For example; in clause 4.4 the reference to:

“Any Derivative Database that You Publicly Convey must be only under the terms of: this Licence; A later version of this Licence; A compatible licence. If You license the Derivative Database under one of the licences mentioned in iii) You must comply with the terms of that licence.”

This clause uses the same language interchangeably between the two above relationships. It is doubtful if a new user (unaware of the current process) will automatically realise that this provision requires him to distribute or allow access to the Derivative Database on the same terms and conditions as those contained within the ODbL. The natural reading of the first part of this clause is that the user’s own right to distribute the Derivative Database stems from one of the three listed licences. Which, of course, is also true.

It is evident that the share alike and free access obligations arising under the ODbL are of great importance to the users and these need to be clear and easily understood.

5. Derivatives databases

Derivative Databases - The Share Alike provisions of Clause 4.4 (and clause 4.2) essentially require that Derivative Databases which are publicly conveyed must only be distributed on the same terms and conditions as this ODbL.

Together with the licensing requirement set out above, clause 4.6 requires that recipients of such a Derivative Database should also receive a machine readable copy of the entire Derivative Database or a file containing all the alterations made to the Database to create the Derivative Database.

There is no requirement to supply copies of these alterations to the OSMF for inclusion in the Database which they hold. The original Database is not included in the share alike obligation. It is our understanding that it is not intended that the Derivative Database should be provided directly to the OSMF, only that the data is made available and ‘could’ be used within the OSMF should a user wish to make use to do so.

The definition of Derivative Database includes “any translation, adaption, arrangement, modification or any other alteration of the Database or of a Substantial part of the Data.”.

Consequently very minor amendments or corrections would trigger the share alike and free access obligations. It is our understanding that this is desirable for maintaining the accuracy of the Database,; for example, correcting misspellings .

However, it may be appropriate to insert a de minimis provision, whereby the minor use and extraction of information from the Database are deemed not to constitute a Derivative Database.. For example; exemptions may be required based on rearranging the data.

6. Collective Databases

Collective Databases – this is defined as the unmodified Database forming part of a collection of independent works. There are two issues of concern in this respect.

Firstly, what is a “collection of independent works”? Will this include; for example, data obtained on a commercial basis which has itself been extracted from a dataset? Can this be said to constitute an independent work? The implications of such data not qualifying as an independent work will be obvious, and could result in an obligation arising to freely licence data which is not free of restrictions.

The same issue arises in the need for the unmodified Database (i.e. the whole Database) to be included in order to qualify as a Collective Database. In practice this will mean that most users’ use of the Database will not fall within this definition.

7. Publicly convey

Publicly Convey – The share alike and free access provisions (clauses 4.4 and 4.6) are dependent upon the Derivative Database being “publicly Conveyed”. It is therefore essential that the term “Publicly” be defined.

This could be defined as either making the Derivative Database, or a service based on the Derivative Database, available (or marketing such a service ) to any person beyond the employees (in their capacity as employees) and contractors (solely for the purpose of providing services to that user) of that user. This could further be linked to the definition of “internally” to prevent huge corporations from using a Derivative Database throughout their organisation without giving share alike access to it.

As noted above, the term “internally” requires definition. (clause 4.5( c)). This could limit internal use to a maximum number (or a percentage) of the user’s employees.

8. Produced Work

Produced Work – the definition of a Produced Work is dependent upon the use of “the whole or a Substantial part of the Data”. This would result in smaller applications not qualifying as a Produced Work; for example, the extraction of a map for use in a book, news bulletin etc.

There are no share alike or free access obligations in respect of Produced Work; although oddly smaller extractions from the Database could qualify as a Derivative Database and trigger these obligations. Our understanding is that this is the intended effect, although it is unclear how the reverse engineering clauses and attribution clause of Produced Works can be enforced if there are no reciprocal restrictions.

Without further (and much more detailed) qualification of both the terms “Derivative Database” and “Produced Work” it must be anticipated that disputes will arise as to whether a creation amounts to a database or a Produced Work. There will undoubtedly be grey areas of dispute as to the difference between what constitutes the Database and its contents. The definitions are (with some justification) circular in this respect.

You will need to decide if you want to take the time and effort to establish more definitive definitions to resolve the above at this point; or to deal with individual issues as they arise. From a legal perspective the latter is by far the wisest choice.

• I was initially intrigued by this wording as well ("what, they want me to always use the whole or a substiantial part of the database for every produced work? but I only want to make a map of south bumDuck!"). I think the reason for this is that anything smaller than "substantial" is free-for-all anyway (as per the database directive). So either the extract I need for South BumDuck is not substantial, then nobody cares what I do with it and the license doesn't even come into play; or the extract is substantial and then the "Produced Work" definition kicks in. --Frederik Ramm 14:43, 13 March 2009 (UTC)

• There appears to be huge variation from different lawyers on what is insubstantial. Our lawyer indicated that in the context of the planet file that the Isle of White might be insubstantial however the OSMF lawyer felt that 1000 geocodes were substantial. It is also possible that the this varies with judisdiction. See question on this subject on the Use Cases page. I understand that it would be possible to define the term substantial in the ODbL if that we helpful but it does show how hard it is the get this stuff right. PeterIto 15:25, 13 March 2009 (UTC)

• My point was that no matter whether substantial-ness starts at 10, 1,000, or 100,000 nodes, the ODbL only needs to cover anything above that limit because anything below is exempt anyway; so the lawyer is right in saying that smaller applications do not qualify for a Produced Work, however this is not a problem for the licensee because it means less obligations for him, and it is not a problem for the licensor because the database directive does not allow him to restrict non-substantial works anyway. -- The larger question of substantial-ness outside of the Produced Work case is of course very important but I doubt it is possible to write a legally binding definition into the license because that would amount to an attempt at overruling the very database directive on which we build. The directive forbids the application of restrictions to insubstantial extracts; if one had the freedom of defining substantial-ness then one would just define that anything comprising more than one data item is substantial and so undermine that basic freedom. --Frederik Ramm 23:13, 13 March 2009 (UTC)

9. Governing Law

It is imperative to apply a governing law to the ODbL. Without this there can be no certainty as to the application of the ODbL, the rights granted and obligations imposed.

Whilst seeking to make the ODbL truly international, the lack of a governing law will certainly result in different rights and obligations being granted and imposed in different territories. This uncertainty will in all probability lead to costly disputes.

The usual way to deal with contracts which span many territories (and this is by no means unusual) is to specify a governing law; and then either allow disputes to be heard in any territory or to specify that all disputes will be dealt with in a certain place. Courts around the world are accustomed to hearing contractual disputes which are subject to a foreign law. It is the case that some countries are stricter in their adherence to foreign law than others, but this still provides more certainty than the application of a number of unspecified laws.

Specific Points Relating to Clauses Within the ODbL

10. Definition of "You"

Definition of “You” – the reference to violation of terms is incorrectly placed. The intention is that those in violation of the terms of the ODbL lose their rights under the Licence. However, certain clauses continue in effect after termination and consequently the definition of “You” still needs to incorporate the violating user after the act of violation.

11. Definition of "Copyright"

Definition of “Copyright” – please see note 3 above.

12. Perpetual or terminable

Clause 3.1 – I would assume that this licence should be perpetual and not “terminable”.

13. Rights to change terms

Clauses 3.3 & 9.3 – The OSMF reserves the right to release the Database under different terms. It is not the current intention of the parties to permit exclusive use of the Database to any single person. However, this provision would permit the OSMF to withdraw the share alike and free access nature of the Database and even to sell it on commercial and exclusive terms. Likewise the OSMF expressly reserves the right to “stop distributing or making available the Database.”

• This one was a surprise to me and seems to confirm that is is worth paying a number of lawyers to look for issues. It mentions OSMF but given that a derived Database is also licensed on the same terms this appears to mean that anyone can derive a database (with pretty much the same content) and then change the terms. OSMF is in a particularly strong position given the relationship it has with the contributors. Clearly this is not acceptable if it is the case. I will be interested to hear what Jordan and the OSMF lawyers say about this one. PeterIto 14:38, 13 March 2009 (UTC)

I believe it should be "Clauses 3.3 & 9.4". --Frederik Ramm 14:53, 13 March 2009 (UTC)

The license seems to contradict itself there. It follows from clause 4.4 ("If You license the Derivative Database under one of the licences") and from the definition of "Licensor" that I'm the licensor of the databases I distribute, but according to section 4.6, "You may not sublicense the Database". Then again, it's not clear how the OSMF could be the licensor for a database that is largely my own work with a little OSM mixed in. -- Sections 3.3 and 9.4 both reserve "right to release the Database under different terms", but only 9.4 promises that this "will not withdraw this Licence". That's probably unintentional. --abunai 22:02, 13 March 2009 (UTC)

14. Notices

Clause 4.2(d) – It may not be possible to include notices upon a particular medium, not just file.

15. Definition of "Collection"

Clause 4.5(a) – the reference to a “collection” is unclear. This is presumably a reference to the Collection of Databases forming the before mentioned Collective Database. The remainder of the clause probably specifies that in the distribution of a Collective Database, although the Collective Database can be licensed on any terms, the Database forming part of it must still only be released if the recipient had agreed to be bound by the same terms and conditions as the ODbL. The effect of this whole clause is very unclear and needs to be clarified. This is important because the licensing requirements of the Collective Database (the whole and those elements other than the Database) rests upon this wording.

16. Additional provision that software is not including in license

Clause 4.8(b) – For the avoidance of doubt, it would be helpful to insert a provision stating that there is no requirement on a user to provide protected software to a recipient, provided that the Unrestricted Database is accessible.