a data licensing problem

[Nathan Kelley]

To OSI License Discussion,

>>> From: Russell Nelson <nelson at crynwr.com>,
>> From: Lawrence E. Rosen <lrosen at rosenlaw.com>,
> From: Russell Nelson <nelson at crynwr.com>,

>>> I have a problem that I would like y'all to consider.  A company 
>>> sells datasets. They wish to cooperate with the opensource folks to 
>>> the extent that opensource folks can use a free copy of their 
>>> dataset. They would also like to be able to sell that same dataset 
>>> to people using proprietary operating systems.  On the other hand, 
>>> they would also like to comply with the Open Source Definition.
>>
>> A dataset is entitled to a copyright, albeit a thin one.  The 
>> individual facts contained in it are possibly not copyrightable.  But 
>> the dataset itself may be licensed on whatever terms the copyright 
>> owner wants, as a copyrightable compilation, including under multiple 
>> licenses.  (You omitted to tell us what the dataset contains.  The 
>> telephone book is copyrightable, although the individual names and 
>> numbers aren't.)
>
> The dataset in question (yes, I'm being cagey) is definitely 
> copyrightable.  And yes, they can copyright it any way they want. What 
> they want, though, is a way to price differentiate.  They'd like to be 
> able to specify, for example, that the data could only be distribute 
> in conjunction with software which is OSD-licensed.  I think that runs 
> afoul of the OSD term that prohibits discrimination.
>
> They'd *really* like to get the best of both worlds: cooperate with 
> people who share and stick it to the people who don't (or, um, can't.)

Let me see if I have this correct:

Our hypothetical company is distributing data which, given the right 
software, can be turned into information. They want to apply Open 
Source principles, which are intended for software rather than data, to 
the distribution of their data on open platforms. However, on closed 
platforms they want individuals to pay to obtain the data, and for the 
purposes of this argument, I'll assume that said individuals on closed 
platforms do not have free redistribution.

Since the copyright question has already been answered, I'll skip that 
part.

If the datasets are indeed different depending upon whether you pay or 
not, then the company will be effectively offering two different 
products under two different licenses; one OSD-complaint (presumably, 
as that is the stated goal), and one proprietary. If the datasets are 
the same, then the company can dual-license the same data, again using 
one OSD-compliant license and one proprietary license. These practices 
are nothing new in the software world; what Apple's doing is a prime 
example.

The next question comes to proprietary and/or open changes that come 
back to the company in question, that they want to put into both 
datasets. This is easily solved by requiring the copyrights on changes 
assigned to said company, with those that don't want to do this for 
whatever reason being able to offer additional data as a third-party 
product. How easy this additional data is then able to be incorporated 
back into the main dataset depends upon the technologies in use. Again, 
these practices are nothing new.

The proprietary license involved will, of course, violate the OSD in 
various ways, however I believe that falls outside our purview.

I'm glad to see more interest is being taken in Open Source, however I 
believe that this discussion is off-topic for this list (at least it is 
according to the list info on the site).

Cheers, Nathan.

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