Open Data Commons

A comment via personal email and via the discuss list for the Open Data Commons set of legal tools. This is about the Public Domain Dedication & Licence:

Would it be possible to include an indemnification clause for misuse of data, for example when the data is passed on to a third person not bound by the license? The reason is that the disclaimer only binds the person downloading the data from the data source. If that person passes the data on to a third party, all warranty disclaimers become unenforceable because that third party did not agree to them (and the license is not passed on to the third party because it is not a “copyleft”-type license due to the public domain dedication). Are there any other legal instruments to protect the data provider against liability and lawsuits stemming from the data (imagine that the data has been modified down the road and is not accurate anymore)?

This is an interesting idea, and one that I suspect that attorneys reviewing the PDDL for use by a particular data provider will be interested  in  hearing more about. But just to be clear for all the readers, I’d like to give a few illustrations.

An indemnification clause states that you will pay someone you have a relationship with for the claims of third parties. In the context of the PDDL and the above suggestion, an indemnification clause would be saying that anyone that got the information from the data provider under the PDDL would pay them if someone that the data recipient gave the database to turned around and sued the original provider.

A=Database/data provider, offering data under the PDDL.

B=Recipient of database/data from A under the PDDL.

C=Any third party receiving the database/data from B.

D=Another third party receiving the database/data from C (and so on from D to E to F…)

A gives database/data to B under PDDL.  The Section 5 disclaimer and limitation of liability applies because B agreed to it (assuming that this disclaimer is valid in the relevant jurisdiction).

B gives it to C without the text of the PDDL attached, which is permitted because the database/data is in the public domain. B hasn’t agreed with A to the disclaimer in Section 5, and so it doesn’t apply.

C relies on the data, suffers damage because the data is inaccurate. C wants to sue A for providing bad data. An indemnification clause would mean that B pays A for costs/fees/damages/etc associated with the C vs A suit.

There seem to be two primary questions here:

1. Can C sue A and consequently what is the liability for A?
2. Would an indemnification clause be a suitable means for protecting A?

1. C vs A and A’s liability

This question requires a bit more research and thought on my end, so I won’t comment too much. But from a practical standpoint,

• It seems like if you were presented with public domain data that you’d be pretty aware that the product is “AS IS” and that anyone could have modified it, and that it would be unreasonable to think otherwise.
• If C was wanting to make sure that they had the most up-to-date and clean data, then they’d come to A (assuming A is that provider) who would present it to them with the PDDL and its Section 5 disclaimer.

2. Would an indemnification clause be a suitable means for protecting A?You can in part avoid the first question by putting in an indemnification clause that says whatever liability is there for A (if any), B pays for it. While I think from a practical legal standpoint that something like this might be desirable, I’m not sure how this fits in with the norms of the Free and Open Source Software, and open content movements.  If the PDDL is too overreaching then many might reject it on philosophical grounds. I’m also not sure that an indemnification fits into the spirit, if not the letter, of the Science Commons protocol.

It will be interesting to see the discussion develop around the idea of liability. Please post your comments or join the discuss list to contribute.

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I just finished listening to the IT Conversations podcast with Fernanda Viégas and Martin Wattenberg of Many Eyes. Many Eyes is kinda like Facebook meets Youtube but with data visualization thrown in. Users can upload data sets which can be manipulated and visualized by other users. What struck me is that in the whole 37 minutes, they didn’t discuss copyright or licensing at all, and IP isn’t even mentioned in the Many Eyes FAQ. Because Many Eyes is supported by IBM, digging through their terms of use produces a link to a standard assertion of copyright and notice of trade marks for ibm.com.

They have some pretty neat visualizations on here, including the US State of the Union 2008 speech as a tag cloud, a map of the underground economy as a percentage of GDP, a word tree of Alberto Gonzales’s testimony in the Senate, and annual visitors to UK railway stations.

Two issues come up in terms of rights — as this is supposed to be a social site around data, making clear the copyright status of the visualizations and giving users the rights to embed or remix these images would be important. They tangentially mention this in the podcast when the two principal researchers at Many Eyes discuss getting a request to place a visualization up on a website. They should think about making that clear up front.

The second issue is naturally enough, given the nature of the Open Data Commons, the rights associated with the data. Since users upload data, they could ask them to describe what rights the data comes under and then advertise that to the users. Users could also make clear the rights associated with data for datasets that they upload. For public domain data, they could use the Public Domain Dedication and Licence that we have produced. Or, once CCZero has gone live, they could use a CCZero Assertion, which would state that the user believes there to be no IP rights over the data.

The terms of use for uploaders, however, does include the following buried in the T&C’s (when creating an account):

You also agree not to submit anyone else’s copyrightable material to alphaWorks Services unless You obtain written permission of the copyright holder to license the copyrightable material to IBM, consistent with the terms of this Agreement.

But the upload page, in the section “Tell us about your data” doesn’t have a rights area. Though it does ask uploaders to give the source and a URL for the source, which could be useful in double checking the origin of data if you wanted to clear the rights.

Just some food for thought. And while you are there, be sure and check out the Size of Scottish Islands by group visualization.

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Creative Commons has released the beta version of CCZero (or CC ∅). CCZero implements the Science Commons Protocol for implementing Open Access Data by waiving related intellectual property rights, including copyright and unfair competition. Open Data Commons also implements this protocol in the Public Domain Dedication and Licence with the accompanying Community Norms statement.

The homepage for the licensing tool is at:
http://labs.creativecommons.org/license/zero

There are actually two underlying CCZero legal tools: one waives copyright and related rights and the other asserts that the work has no copyright in the United States.

CC ∅ Waiver 1.0 United States

Human readable summary available here.
Underlying legal code available here.

This legal code is for authors and rightsholder to waive copyright and related rights to the covered work and thus place it into the public domain. It is geared towards the law of the United States and does not mention, for example, database rightsUPDATE see below. It has a back-up license (like the Public Domain Dedication and Licence) in case a court finds the wiaver invalid.

CC ∅ assertion 1.0 United States

Human readable summary available here.
Underlying legal code available here.

The assertion is for third parties (not authors or rightsholders) to say that they’ve looked into the copyright status of the work and believe it to be in the public domain — in other words out of copyright. The text limits the assertion to US law and includes a clause recognizing that the asserter may be liable for making this assertion.

Initial thoughts

I’ll be posting more about CCZero and its relationship to the Open Data Commons but initially I’d like to point out that:

• CCZero is based on US law and doesn’t include a specific waiver of database rights, though further internationalisation will presumably result in versions that do waive database rights;
• UPDATE — Apologies I initially missed it, but there is language waiving database rights thought they aren’t mentioned by name. The waiver states ” including but not limited to … and any rights protecting the extraction, dissemination and reuse of data ,..”
• The assertion only covers copyright law and not other areas of law, including those covered by the waiver (privacy, moral rights, unfair competition, and so on), though this makes sense in the context of these other rights; and
• The CCZero assertion only covers copyright law in the United States.

Both the Open Data Commons Public Domain Dedication and Licence and the CCZero texts are drafts, and so your comments would be most welcome.

Tags:   cczero · copyright · database rights · open data · public domain1 Comment

I’ve update the theme for the site — I don’t claim to be a web designer by trade, and I’m aware of some needed tweaks that we will work on in the near future. However the original site was put up quickly and didn’t have trackbacks and comments working on the legal tools (and didn’t take advantage of the latest WordPress features). Any suggestions or offers of help most welcome.

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After a short break for the holidays, we’ll be posting and promoting the new drafts more regularly. I hope that everyone had a pleasant time over the holiday break. Happy new year!

2008 is looking like it will be the year of open data. With the release of the Science Commons protocol, the announcement of CCZero, and of course our project, it looks like there will be quite a few options on the table for licensing data in an open way this year. This is after a long time where there were no good options for those looking at licensing data.

Hopefully we will soon release the draft Public Domain Dedication & Licence for use and then we can start getting some feedback from projects making use of the licence and their experiences. With some early adopters, we can quickly start to see some of the benefits of the public domain approach, and maybe some variations on the Community Norms (you are after all free to roll your own).

We will be doing some speaking and presentations on open data throughout the year — details as soon as they are available. One of many will be at this year’s OKCON on 15th of March at the London School of Economics. Details here. If you know of an event you think we should speak at about open data, please contact us with the details.

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I want to bring up an important issue in trying to implement the public domain dedication part of the Open Data Commons Public Domain Dedication & Licence. The PDDL is made up of two parts — a dedication to the public domain of the “Work” and a back-up licence in case the jurisdiction involved doesn’t allow for a dedication into the public domain (dedicating your work isn’t necessarily allowed everywhere).

Giving up your rights to a work is a pretty big deal. That’s why most (if not all) legal systems require when a rightsholder assigns their copyright — totally and completely giving copyright over to another — they put it in writing and sign it. This is true in the UK and the US for example.

Dedicating a work to the public domain is relatively new territory, legally speaking, and so there probably won’t be a specific piece of legislation or court case out there in the relevant jurisdiction discussing how to dedicate the work to the public domain. But if there was, it would likely require a signed writing in order to make sure that rightsholders don’t give up their rights accidently — to prove that they thought about what they were doing and that they did it intentionally.

The parallel process of assigning a copyright (in existing law) is pretty important when arguing to a court confronted with enforcing the PDDL that it can and should be enforced as a public domain dedication, and it is very likely that the court would want to see a signed writing for the reasons discussed. It makes sense when you think about how dedicating your work to the public domain is a lot like assigning it to everyone on the planet simultaneously.

So once the process is complete for getting your feedback on the text of the PDDL, we will have to think about how we want the PDDL to be implemented. Because it should involve a “signed writing”, we can’t just have people link to the PDDL document when they want to use it, like people do for the Creative Commons licences. We’ll have to do something more like what CC currently does with their Public Domain Dedication tool, which involves a series of emails before the work is dedicated. Presumably the new CCZero will have the same or similar process.

Any thoughts on ways to implement this process would be most welcome. Please sign up for the discuss list here or comment on the site to add your voice.

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There has been some discussion on a blog concerning the definition of a database used in the Public Domain Dedication & Licence and how this is applied. While the discussion is ongoing, I do want to mention the possibility of adding in a clause to clarify the types of rights involved in databases.

Proposed clause (new 2.2, current 2.2 shifted to 2.3)

2.2 Legal rights covered. This Licence covers the legal rights in the Database, including:

a. Database Rights. Database Rights only extend to the extraction and re-utilisation of the whole or a substantial part of the Data. Database Rights can apply even when there is no copyright over the Database. Database Rights can also apply when the Data is selected and arranged in a way that would not infringe applicable copyright.

b. Copyright. Any copyright or neighbouring rights in the Database. The copyright licensed includes any individual elements of the Database, but does not cover the copyright over the Data independent of this Database.Copyright law varies between jurisdictions, but is likely to cover: the Database model or schema, which is the structure, arrangement, and organisation of the Database, and can also include the Database tables and table indexes; the data entry and output sheets; and the Field names of Data stored in the Database.

[Read more →]

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The issue of unfair competition has already come up on one of the discuss lists. The new Science Commons Protocol for Implementing Open Access Data mentions this area of law.

4.1 Converge on the public domain by waiving all rights based on intellectual property

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Thus, to facilitate data integration and open access data sharing, any implementation of this protocol MUST waive all rights necessary for data extraction and re-use (including copyright, sui generis database rights, claims of unfair competition, implied contracts, and other legal rights), and MUST NOT apply any obligations on the user of the data or database such as “copyleft” or “share alike”, or even the legal requirement to provide attribution. Any implementation SHOULD define a non-legally binding set of citation norms in clear, lay-readable language.

The Public Domain Dedication & Licence doesn’t mention unfair competition, and so the question has come up whether it is compliant. I’ve gone ahead and started this part of the Legal FAQ to address this issue and solicit your feedback. The response is after the jump.

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Tags:   copyright · Open Access Data Mark · Open Data Commons · Science Commons · unfair competition1 Comment

The new Open Data Commons set of legal tools are now available for comment. There are two documents for you to review:

Public Domain Dedication & Licence (PDDL)

Community Norms

We’ve created a FAQ for some of the initial questions here. A FAQ addressing some of the in-depth legal issues of the PDDL will be forthcoming.

The current draft PDDL is compliant with the newly released Science Commons draft protocol for the “Open Access Data Mark” and with the Open Knowledge Foundation’s Open Definition.

Read the protocol here and read the announcement on the Science Commons blog here. The Open Definition is available at http://www.opendefinition.org/.

You can read the Creative Commons announcement here, and read about their new implementation of the protocol, CC ∅ here.

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Welcome to the official site of the Open Data Commons project. Here you will find all about the licences and other documents available.

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