On Mon, 9 Aug 2010 11:30:35 +0200 Francesco Poli wrote: [...] > ## ODC Open Database License (ODbL) Better late than never, what follows is my own personal analysis of the license. My first comment is about the very existence of this license: we should fight license proliferation as much as we can. Another (long and complicated) license is not a good thing to have, hence I am not happy at all to see that people still fail to resist the temptation to write their own brand-new license... :-( I am aware that in some jurisdictions there are special database rights that are not the same thing as copyright, but I am not quite convinced that a database-specific license is really needed. [...] > ### 1.0 Definitions of Capitalised Words [...] > > "Produced Work" – a work (such as an image, audiovisual material, text, > or sounds) resulting from using the whole or a Substantial part of the > Contents (via a search or other query) from this Database, a Derivative > Database, or this Database as part of a Collective Database. > [...] > > "Use" – As a verb, means doing any act that is restricted by copyright > or Database Rights whether in the original medium or any other; and > includes without limitation distributing, copying, publicly performing, > publicly displaying, and preparing derivative works of the Database, as > well as modifying the Database as may be technically necessary to use it > in a different mode or format. > [...] > ### 3.0 Rights granted > > 3.1 Subject to the terms and conditions of this License, the Licensor > grants to You a worldwide, royalty-free, non-exclusive, terminable (but > only under Section 9) license to Use the Database for the duration of > any applicable copyright and Database Rights. These rights explicitly > include commercial use, and do not exclude any field of endeavour. To > the extent possible in the relevant jurisdiction, these rights may be > exercised in all media and formats whether now known or created in the > future. So far, the grant of rights seems to meet the DFSG, without any issue. Please note that the verb "Use" is defined above in a very broad sense. [...] > 3.2 Compulsory license schemes. For the avoidance of doubt: > > a. Non-waivable compulsory license schemes. In those jurisdictions in > which the right to collect royalties through any statutory or > compulsory licensing scheme cannot be waived, the Licensor reserves > the exclusive right to collect such royalties for any exercise by You > of the rights granted under this License; > > b. Waivable compulsory license schemes. In those jurisdictions in > which the right to collect royalties through any statutory or > compulsory licensing scheme can be waived, the Licensor waives the > exclusive right to collect such royalties for any exercise by You of > the rights granted under this License; and, > > c. Voluntary license schemes. The Licensor waives the right to collect > royalties, whether individually or, in the event that the Licensor is > a member of a collecting society that administers voluntary licensing > schemes, via that society, from any exercise by You of the rights > granted under this License. This section seems to waive all the rights to collect royalties that can actually be waived, according to applicable laws. It seems to do no harm (it is worth noticing that a very similar clause is found in the Creative Commons Attribution License v3.0). [...] > ### 4.0 Conditions of Use [...] > 4.2 Notices. If You Publicly Convey this Database, any Derivative > Database, or the Database as part of a Collective Database, then You > must: > > a. Do so only under the terms of this License or another license > permitted under Section 4.4; This is a copyleft mechanism. It doesn't look like a strong one, but anyway... Not an issue with the DFSG, but something to bear in mind when assessing compatibility with other licenses, I would say. [...] > 4.3 Notice for using output (Contents). Creating and Using a Produced > Work does not require the notice in Section 4.2. However, if you > Publicly Use a Produced Work, You must include a notice associated with > the Produced Work reasonably calculated to make any Person that uses, > views, accesses, interacts with, or is otherwise exposed to the Produced > Work aware that Content was obtained from the Database, Derivative > Database, or the Database as part of a Collective Database, and that it > is available under this License. > > a. Example notice. The following text will satisfy notice under > Section 4.3: > > Contains information from DATABASE NAME, which is made available > here under the Open Database License (ODbL). > > DATABASE NAME should be replaced with the name of the Database and a > hyperlink to the URI of the Database. "Open Database License" should > contain a hyperlink to the URI of the text of this License. If > hyperlinks are not possible, You should include the plain text of the > required URI's with the above notice. This clause should be read *carefully*: it seems to be narrow enough to be an acceptable restriction (putting a little notice in Produced Works does not look like a big deal), but I may be missing something important. What do other debian-legal regulars think? > > 4.4 Share alike. > > a. Any Derivative Database that You Publicly Use must be only under > the terms of: > > i. This License; > > ii. A later version of this License similar in spirit to this > License; or > > iii. A compatible license. > > If You license the Derivative Database under one of the licenses > mentioned in (iii), You must comply with the terms of that license. This is another part of the (weak) copyleft mechanism. Please note that a rights owner that adopts this license, cannot avoid granting licensees the permission to choose future versions of this same license. You should avoid adopting this license, if you don't want to license your database under *yet unknown* terms! [...] > e. Compatible licenses. Licensors may authorise a proxy to determine > compatible licenses under Section 4.4 a iii. If they do so, the > authorised proxy's public statement of acceptance of a compatible > license grants You permission to use the compatible license. This clause makes it clear that the list of "compatible" licenses may vary from case to case, and depends on a licensor's choice to elect an authority (here called "proxy") to publicly declare other licenses as "compatible". This means that the DFSG-freeness of a particular database licensed under the ODbL may greatly depend upon the particular list of "compatible" licenses chosen by the "proxy" elected by the licensor. [...] > 4.6 Access to Derivative Databases. If You Publicly Use a Derivative > Database or a Produced Work from a Derivative Database, You must also > offer to recipients of the Derivative Database or Produced Work a copy > in a machine readable form of: > > a. The entire Derivative Database; or > > b. A file containing all of the alterations made to the Database or > the method of making the alterations to the Database (such as an > algorithm), including any additional Contents, that make up all the > differences between the Database and the Derivative Database. > > The Derivative Database (under a.) or alteration file (under b.) must be > available at no more than a reasonable production cost for physical > distributions and free of charge if distributed over the internet. This clause seems to imply (among other things) that someone who uses a Derivative Database, or even just a Produced Work from a Derivative Database, on a networked server, is compelled to make the whole Derivative Database available to the remote users. This clause looks terribly similar to the infamous section 13 of the GNU AfferoGPL v3. For the record, my own personal opinion on the GNU AfferoGPL v3 is that works under this license do not comply with the DFSG: http://lists.debian.org/debian-legal/2007/11/msg00233.html Unfortunately, ftp-masters accept those works into main: http://lists.debian.org/debian-legal/2008/11/msg00097.html a decision I disagree with: http://lists.debian.org/debian-legal/2008/12/msg00030.html I think that the ODbL has some issues in common with the GNU AfferoGPL. > > 4.7 Technological measures and additional terms > > a. This License does not allow You to impose (except subject to > Section 4.7 b.) any terms or any technological measures on the > Database, a Derivative Database, or the whole or a Substantial part of > the Contents that alter or restrict the terms of this License, or any > rights granted under it, or have the effect or intent of restricting > the ability of any person to exercise those rights. > > b. Parallel distribution. You may impose terms or technological > measures on the Database, a Derivative Database, or the whole or a > Substantial part of the Contents (a "Restricted Database") in > contravention of Section 4.74 a. only if You also make a copy of the > Database or a Derivative Database available to the recipient of the > Restricted Database: > > i. That is available without additional fee; > > ii. That is available in a medium that does not alter or restrict > the terms of this License, or any rights granted under it, or have > the effect or intent of restricting the ability of any person to > exercise those rights (an "Unrestricted Database"); and > > iii. The Unrestricted Database is at least as accessible to the > recipient as a practical matter as the Restricted Database. > > c. For the avoidance of doubt, You may place this Database or a > Derivative Database in an authenticated environment, behind a > password, or within a similar access control scheme provided that You > do not alter or restrict the terms of this License or any rights > granted under it or have the effect or intent of restricting the > ability of any person to exercise those rights. This is an anti-DRM (or anti-TPM, if you prefer) clause, probably the most controversial part of Creative Commons v3.0 licenses. It has been discussed to death on both debian-legal and cc-licenses, when CC-v3.0 license texts were being drafted, and after the final texts were published, as well. See for instance: http://lists.debian.org/debian-legal/2007/03/msg00105.html The anti-DRM clause in the ODbL seems to allow parallel distribution, that is to say: it seems to allow a licensee to distribute a DRM-restricted form of the work, as long as he/she also make a clean (unrestricted) form available in parallel. If this parallel distribution scenario is allowed, then I've seen no one objecting to the freeness of an anti-DRM clause: everyone says that such a clause meets the DFSG. It looks like this ODbL anti-DRM clause is very similar to the form that many people would have considered right for Creative Commons licenses. Hence, I would say that this clause does not pose any DFSG-freeness issues. [...] > ### 5.0 Moral rights > > 5.1 Moral rights. This section covers moral rights, including any rights > to be identified as the author of the Database or to object to treatment > that would otherwise prejudice the author's honour and reputation, or > any other derogatory treatment: > > a. For jurisdictions allowing waiver of moral rights, Licensor waives > all moral rights that Licensor may have in the Database to the fullest > extent possible by the law of the relevant jurisdiction under Section > 10.4; > > b. If waiver of moral rights under Section 5.1 a in the relevant > jurisdiction is not possible, Licensor agrees not to assert any moral > rights over the Database and waives all claims in moral rights to the > fullest extent possible by the law of the relevant jurisdiction under > Section 10.4; and > > c. For jurisdictions not allowing waiver or an agreement not to assert > moral rights under Section 5.1 a and b, the author may retain their > moral rights over certain aspects of the Database. > > Please note that some jurisdictions do not allow for the waiver of moral > rights, and so moral rights may still subsist over the Database in some > jurisdictions. This clause seems to try hard to neutralize restrictions due to moral rights, to the maximum extent permitted by applicable law. It seems to do no harm. [...] In summary, my own personal opinion is that the main troublesome parts of this license are in section 4.6 and *possibly* in section 4.3 (but the latter section is probably OK). Anyway, I would like to restate that, in order to not add to license proliferation, it would have been better, if this new database-specific license had not been written at all. -- http://www.inventati.org/frx/progs/scripts/pdebuild-hooks.html Need some pdebuild hook scripts? ..................................................... Francesco Poli . GnuPG key fpr == C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4
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