Open Database License/Contributor Terms/Open Issues
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This page is intended as a collection of open issues about the Contributor Terms (CTs) version 1.0 . Open issues are not necessarily criticisms, just things that need to be resolved before the CTs should be widely adopted or implemented. For reasons of clarity, discussion of these points is probably best left to the Talk page or to the legal mailing list.
It is also recognised that the License Working Group are aware of a number of these issues, as evidenced by reading LWG minutes and [1], and that a revised version 1.1 and 1.2 & 1.2.3of the CT's are currently being drafted.
There is also a contributor terms FAQ, what the legal status of this is, and how it will be communicated to those about to sign the CT's is currently unclear.
Scope 1
The current contributor terms cover a person and not a user account.
Therefore if someone is unable to agree to the contributor terms then they will be prevented from ever contributing to OSM again, once OSM only accepts edits from people/accounts that have agreed to the CTs.
There will be many active contributors who have added data in the past who can not (however much they might like to) agree to the CT, for instance because they can not agree to the statement "or, to the best of Your knowledge, infringe any third party's rights". These contributors will be prevented from ever contributing to OSM again.
This situation currently arises with anyone who has used NearMap imagery available in Australia [2]
With the current wording of the CTs there is no way round this, they cannot use someone else's account, they cannot create a new account and agree to the CTs , whilst leaving their old account dormant.
Possible Solution 1: Change the CTs so that it is not a blanket coverage for a user, but rather relates to edits a user makes whilst logged in with a specific account. Therefore amend the second sentence of the first paragraph with some extra wording added to it so that it becomes something like:
"This contributor agreement (the 'Agreement') is made between you ('You')and The OpenStreetMap Foundation ('OSM-F') and clarifies the intellectual property rights in any Contents that You choose to submit to the Project under your currently logged in user account. "
Legal Capacity
Because this is a contract, only those of suitable age, mental status and in some countries even gender are able to enter into contracts, minors, those deemed mentally unsound and in some countries women would need a parent or guardian to agree on their behalf or the CTs would not be legally binding.
Contradiction within the paragraph no (1)
This paragraph starts "You agree to only add Contents for which You are the copyright holder ", and later has the words "If You are not the copyright holder of the Contents". The second clause is forbidden by the first. There is therefore confusion as to what is intended / allowed.
Fixed. Clause 1 has been reworded, revised version 1.1 or may be replaced entirely, revised version 1.2.
Explicit permission
Notwithstanding the point above, the last line of para (1) states "If You are not the copyright holder of the Contents, You represent and warrant that You have explicit permission from the rights holder to submit the Contents and grant the license below."
Myself and others have raised concerns about the word explicit. The sentence in which that phrase is contained would still make sense if the word explicit were removed. Therefore I conclude that the inclusion of the word explicit is important and deliberate.
To me the phrase "explicit permission" would indicate that the rights holder would have to state something along the lines of "I give David Groom permission to incorporate my data into OpenStreetMap" .
Lets take CC0 data, there is still a rights holder of the data, who has released the data under CC0. I would contend I have an implicit permission to use the data in OSM, I would also contend I have permission to use the data in OSM, but I don't think I have explicit permission.
Mike Collinson (Chairman of the License Working Group) believes that the same issues was raised by the LWG [3], and asked for other members of the LWG to confirm that this point was raised with legal counsel. No one has confirmed this, and there is nothing concrete which shows what legal counsels view on the word "explicit" is.
There has been, and no doubt will be more, much discussion on exactly what "explicit" means. The point remains that it is a contentious issue with a number of contributors, and so far no clear evidence has been presented which would help these contributors believe that in many cases they do have explicit permission form the rights holder.
Solution:: (1) LWG should publish counsels opinion that the general permissions given (by licenses such as CC0 and PD) are compatible with the CT requirement to obtain explicit permission. OR (2) remove the word explicit from the CTs.
Solution:: (2) Change the CTs to require either "explicit permission to submit the Contents under these terms" or that "the Contents have been released under a license and/or terms that is/are compatible with these terms." Then add a statement that "For the purposes of this clause, OSMF will maintain the definitive list of licenses and terms that are deemed compatible." This would remove any need for (and risks associated with) individual mappers to have to worry about interpreting any licenses / T&C's, or how to interpret "explicit" -- they can either ask the copyright owner directly for explicit permission to submit to OSM, or rely on a pre-vetted license that OSMF says is ok.
Fixed. Clause 1 has been reworded, revised version 1.1 or may be replaced entirely, revised version 1.2.
Incompatibility with CC-BY / Attribution Data
The CTs require you to grant OSM-F a license to sub-license any data you upload under a license of their choosing subject only to a constraint that the license they choose is "open and free" which clearly does not restrict their choice to licenses that would pass on the attribution requirement.
This is further complicated by the fact that the suggested letter to big data donors states "The underlying principles remain the same: the data can be used freely by anyone as long as there is attribution", and whilst this may be a principle of ODbL it is not a principal of the CTs, by virtue of the fact noted above.
- Possible Solution 1: Qualify "free and open" by adding a "with an attribution requirement"
- Possible Solution 2: Include a clause in the CTs that if any future license is chosen does not have an attribution clause then OSMF will remove all data entered which requires attribution.
Wording under consideration in working draft 1.2 implements solution 2.
The LWG would prefer not to implement solution 1 because "attribution" works at more than one level. The first two work well within the present 1.0 CTs/1.0 ODbL but the third is problematic for both practical and legal reasons:
A) On publication of OSM database.
Section 4 of the CTs has a specific mechanism to attribute any third-party or OSM contributor:
http://wiki.openstreetmap.org/wiki/Attribution
This clause remains standing even if the end-user license is changed, and even if that license had no Attribution requirement at all.
B) On distribution of the OSM database and extracts from it.
The LWG is committed to ensuring that at least an obvious link to a) the terms of use (end user license) and b) the Attribution page are present in every distributed extraction made from the master OSM database hosted by OSMF. An extraction could be the entire database (planet dump) or a single POI ... the amount of data added therefore needs to be small. This is an ongoing process. We could consider amending Section 4 of the CTs to add wording similar in intent to "and a link to this page provided in extractions published by the OSMF". This does not need to be done immediately, and should in any case wait until it becomes a physical and technical reality.
C) Attributions in derivations
CC-BY requires attribution "at least as prominent". It is impractical to list every contributor on a map and this is a major reason for want to move away from the similarly worded CC-BY-SA. Should a data donor feel that this is important, then probably that data should not be in OSM, no matter what license we use.
Under section 3, the CTs offer the potential to relicense data in future under another "free and open license", so even if OSM adopted another share a like license in future, it may not be compatible with ODBL just as CC-by-SA isn't compatible with ODBL.
Under section 1, Person A downloads some or all of the OSM data, they make changes to that data and offer it on their own website as required by the ODBL. Person B comes along and wants to import that data into OSM, but they can't incorporate that information back into OSM because they do not have the right to grant OSM the ability to relicense that data in future.
As of 19 August 2010 this is no no longer a theoretical point. NearMap, after discussion with their lawyers, have confirmed [4] that although use of NearMap imagery is compatible with CC-BY-SA, and is compatible with ODbL, it is NOT compatible with the CTs
The following wording or wording with similar intent is under consideration for inclusion in clause 1:
"If we suspect that any contributed data is incompatible (in the sense that we could not continue to lawfully distribute it), with whichever licence or licences we are then using (see section 3), then we may delete that data temporarily or permanently."
Action in Event of Breach of Contributor Terms
There's nothing in the CTs which state what happens if you deliberately or accidentally breach the CTs. It seems odd having a whole set of terms which someone has to agree to, but nothing which states what happens if you breach them.
Some of the possibilities which might occur are:
- Will all your data be removed from the OSM DB?
- Would just data which breaches the CTs be removed?
- Will you account be suspended?
- Should you voluntarily stop contributing to OSM?
The LWG intends no direct action, though a current complete redraft of Clause 1 may assist. In foreseeable cases, the only cure OSMF really needs is the ability to allow the OSM community to remove (just) problematic contributions and suspend accounts ... even that can be handled by general website Terms and conditions. However, stating that in CTs might be potentially dangerous as it would limit OSMF's scope for dealing with extremely persistent data vandals or third party IP violators. Contributors should not feel threatened because the OSMF's response is strictly curtailed under the limitations of liability section.
Scope 2
For existing contributors the preamble requires you to "confirm that you accept the terms of this agreement for your existing and future contributions". There will undoubtedly be instances where data has been added which is incompatible with the CT's, and the assumption has been made by some contributors that if this data is removed from OSM then the user will be in compliance with the CT's. This is however just an assumption, since the CT's make no reference to this, and The CT's simply refers to data being added.
Furthermore even if the assumption is made that OSM will remove data from its database (and this will be a total removal rather than just the usual "deletion" a user makes - which still retains the data in the DB) the data will still remain in copies of the planet dumps which have been distributed.
There seems little point in making the CT's applicable to all past data. It would therefore be helpful if the CT's, through the preamble, were made relevant to existing data only to the extent that it still exists in the database at the time the license change is approved.
Possible Solution : Reword the preamble something along the lines of "Please read the agreement below and press the agree button to confirm that you accept the terms of this agreement for your future contributions, and existing contributions to the extent that they remain in copies of the OSM database distributed after XX"
The LWG analyzed in detail what is the real issue and potential solutions. Option three has now been implemented with the release of Contributor Terms 1.2.4 and they do not intend to further pursue this item. Option 2 remains a possibility but the LWG asked how many folks wanted it and got almost no response.
The issue: "Some people will not be able to agree to terms because of previous contributions, insubstantial or substantial" that might not be compatible with the new terms.
Potential solutions:
1) Make the CTs not apply to previous contributors (made on the Open Issues page). LWG feel this is not practical and will not pursue it.
2) Allow contributors to flag contributions changeset by changeset and flag those that cannot be promoted forward. Previous contributions would be included, except where indicated by the contributor. Technically doable but time consuming for the contributor AND requires someone to volunteer to create the tools (see "Per change set implementation" discussion in LWG minutes 1st and 15th February 2011).
3) A radical re-draft clause 1 removes the requirement for contributors to warrant that that all their previous contributors are compatible and allows the community instead to sort it out collectively. NOW IMPLEMENTED.
Very wide range of paragraph 2
This point is taken from this email from NearMap, but could be an issue for other data providers.
- paragraph 2 of the CTs requires that an OSM user grants the OSMF a very wide ranging license ("a worldwide, royalty-free, non-exclusive, perpetual, irrevocable license to do any act that is restricted by copyright over anything within the Contents, whether in the original medium or any other. These rights explicitly include commercial use, and do not exclude any field of endeavour"). We[NearMap] can't grant a license to derive data from our PhotoMaps that would allow the derived work to be submitted to OSM under that clause; it introduces yet another license (above and beyond CC-BY-SA and ODbL/DbCL).
No action intended. This is deliberate to a) allow insubstantial extractions under the European Database directive, and b) allow flexibility over the next 100 years for future license changes, if needed. For third party licensors: This paragraph must be read in conjunction the clause 3 restriction on how OSMF can publish data. A separate solution is being made to the coherence issue should close the backdoor by making it clear that if a future clause 3 license was incompatible with third party-exerted rights, then their data would have to be removed. The LWG is in direct contact and correspondence with NearMap.
Incomprehensible section 7 (Miscellaneous)
The section 7 (Miscellaneous) mentions several legal terms and treaties that a normal human being can not be expected to know anything about. If I want to honestly declare my consent to the contributor terms, I need to have understood them before. Here are some of the things that I think a user should not be required to inform themselves about, before being allowed to contribute to a "free wiki world map":
- English law
- The principles of conflict of law. What are they? Are they part of English law, or international law, or no law at all? Are they different in each legislation? And what exactly is meant by "without regard" and which implications does it have for the user?
- The United Nations Convention on Contracts for the International Sale of Goods (1980)
In addition, can we be certain that all potential contributors are even legally allowed to subject themselves to English law? How many - especially in countries that are still mostly unmapped - would we exclude by that requirement? And where they are allowed to - would it be enforceable?
I apologize for the slightly sarcastic tone in my complaint, but I urge everyone to always consider the central goal of our project: building a freely accessible map as a community. Every avoidable obstacle on the way there is one too many, and while legalese may give lawyers a sense of security and a nice feeling, it has the opposite effect on almost everyone else.
I am aware that there are human-readable versions of the licenses and the contributor terms in preparation, but what use are they, if they are not legally binding and I still need to agree to the ones I don't understand?
Of course, the majority will still agree to the contributor terms; after all, they want to contribute. That still doesn't mean they have understood them. Is this really what we want? In my opinion, it is dishonest.
So here is my (again polemic, though not totally unserious) suggestion about what we should do:
- Formulate human-readable texts for our licenses and Contributor Terms.
- State clearly, how we want to allow our content to be used, and under which conditions.
- Describe the reasoning behind the restrictions we place on the use and the obligations we put on the user/contributor, so that they can be followed by their spirit instead of by their wording.
- Say all that in a way that is clear and understandable, so that it leaves less room for miscomprehension and interpretation.
- Accept that there are always corner-cases that cannot be regulated. They aren't important, as long as the intentions of the license are formulated clearly. If this means that Evil Map Company (TM) can get away with doing something we haven't completely anticipated, so be it. After all we want our data to be used in "new and creative ways".
- If we want to put consumers at ease that do care about corner cases, OSMF may explicitly give them permission (they can do that since they are the licensors). Of course, OSMF would only be allowed to do that if doesn't run counter to the general spirit and goals of the project and the licenses.
- And the final step: Use the texts formulated according to the above guidelines instead of the current licenses and contributor terms.
-- The preceding unsigned polemic was added by User:Schuetzm on 8th October 2010.
Yep, section 7 is legal boiler plate. We have already met several of the points raised by producing human readable versions of both the CTs and the ODbL and by creating a resource aimed at end-users (rather than contributors) which is available at http://www.osmfoundation.org/wiki/License. However, there are a number of good specific points and questions that can be used to expand the latter resource. The LWG do not see any reason to change the Contributors Terms themselves as precise legal language is used.