Another comment from a mailing list:
This looks like it’s falling into what I’ll call “the maximalist paradox” — That is the intention to “free” even more culture by instituting more laws that can be leveraged in a copyleft way to protect basic freedoms.
Another example is when the FSF tries to argue that using a photo along with text counts as a derivative work and therefore can be bound by copy left, where there is little legal or historical precedent for it. Conversely, the copyright maximalists also suffer from the “the minimalist paradox” in that they are constantly trying to argue that certain works that would otherwise be considered derivative works aren’t really derivative works because it suits their particular bottom line or contract negotiations. Ever wonder why ringtones aren’t considered derivative works based off their original music piece? It’s because the RIAA was so obsessed with cutting the original musicians and creators out of the loop that they lobbied for laws establishing ringtones as their own standalone works — put simply, they didn’t want to pay out artists for ringtones.
So ultimately we have to be very careful about how try to advocate for more rights so that we can have less.
These are some great comments. I think it is fair to speak with everyone involved in drafting the licence that we all definitely would like the licence to be balanced in its approach.
Using contract to institute a set of terms and conditions on use of a database, though, is hardly an approach with “little legal or historical precedent”. The US data industry is built in large part on contract, and I don’t think that the licence stretches any laws to act as a contract.
Both of the examples that are used are trying to play on the edges of copyright law. If there is no copyright, and no database right, then you aren’t playing on the edge of any law or otherwise making dubious claims — it is just a straight forward contract. The only questionable part is how the contract is formed within the context of how the licence is actually used on the material (i.e., validity of browse wrap or a click wrap contract). I guess here it is important to remember that just because something isn’t covered by copyright or database rights that doesn’t mean you automatically get to use it.
The licence is not meant to claim copyright where none exists, or to enforce database rights outside of the jurisdictions that have them. If that was the goal, you could easily try for an approach with a choice of law and choice of venue clause picking, for instance, England and Wales. That way you could try to enforce database rights and one jurisdiction’s law on database copyright worldwide.
I think that licence is rather minimalist in its approach. It tries to plainly set out in Section 2 what the rights are in the licence and how and where they apply. By separating out the contents from the database, it doesn’t try to cover a bunch of information or works that it shouldn’t.
Thanks again for the comments.
