From:    "Tim Rushing"
Date:    Mon, 08 Nov 2004 13:39:45 -0600
To:    Karen Duffin
Subject:    Grokline licensing question

Ms. Duffin,

I read the OSRM press release regarding the GrokLine project on Bruce Perens
Technocrat.net site with interest.  (http://technocrat.net/article.pl?sid=04/11/08/1820231&mode=thread)

I have an account at Grokline now, and while I doubt I can actually contribute
much, I am interested in doing so.

I do have a question regarding the licensing of GrokLine, though.  Both the
GrokLine site itself and the press release say that GrokLine is released under a
Creative Commons License and link to the following URL:  http://creativecommons.org/licenses/by-nc/2.0/

That URL says "Noncommercial. You may not use this work for commercial
purposes."

I'm curious as to what exactly that means.  Since OSRM is sponosoring GrokLine,
are they able to use the data gleaned from it for commercial purposes?    Or is
even OSRM prevented from using it for commercial purposes?  Likewise, the same
URL says "Any of these conditions can be waived if you get permission from
the copyright holder."  Is OSRM the copyright holder of the material at
GrokLine?

I will say that I'm a bit of a libertarian GPL type, meaning that I'd much
prefer a CCL without the commercial restriction--not that I will ever make any
money off of anything posted there.  But, my concern is that it appears that
OSRM is asking for the work of the community for commercial purposes, but not
allowing others the same commercial opportunity of the resulting work.

I'm writing you since you are the press contact link mentioned in the press
release.  If you are not the appropriate person for this question, please let me
know who is.

Thanks very much,

Tim Rushing

I received a brief not from Karen that she had forwarded it to Len Newman.  Both Len Newman and Daniel Eggers were cc'd on Karen's message.  I had also e-mailed Bruce Perens a copy of this and an additional note pointing out some of my concerns more explicitly.  In the note to Bruce, I alerted him that PJ and I had had run-ins in the past.

Below, is my first response to Len's first e-mail to me.  I summarized the content of Len's first e-mail on a CKX post

From:    "Tim Rushing"
Date:    Mon, 08 Nov 2004 15:42:27 -0600
To:    Len Newman, "Karen Duffin"
CC:    Daniel Eggers
Subject:    Re: Fw: Grokline licensing question

And, may I say, thanks for you answer.    In a discussion I was involved in we had
come to a similar answer regarding the lack of copyright protection for facts.
And, while I doubt that I will be able to contribute much meat to the project, I
think that I can contribute some questions or nuances to be considered and
expect to do so.  You are more than welcome to any comments I make.

I do wonder, though, whether my comments are released under the CCL.  I see that
you and the site indicate that copyright for comments remains with the
individual.  However, I also see that when I go to make a comment on the site
there is language there indicating that I am agreeing to license my comment
under the CCL.    I have no problem with that.  In fact, I like that answer, but I
think you might want to make that clearer as well.

Again, your responses have allayed many of my concerns.  I wonder if I could
either post your e-mail (without address or headers) for some others to see, or
if you would prefer I not.

Finally, as the commercial aspects of the work relate to the non-commercial
attribution.  While it is true that the courts have not held facts to be
copyrightable, there is a, regrettable in my opinion, body of work that have
held that the arrangement of those facts into a database may be protectable.  Do
you view the resulting timeline of dates and information as protectable, since
it is nothing more than a collection of facts?

     ---Tim Rushing

Len responded by indicating that the database of information they produce would be copyrightable.  He also indicated surprise that there was wording a person saw when posting indicating that they were CCLing (attribution, non-commerical) their post.  He indicated it hadn't been there during beta-testing and that perhaps "wiser legal minds" decided to make the change.  He indicated he would get back to me within 24 hours after consulting the "wisest legal mind."

I also made a second response to Len's first e-mail.  The "this approach" in his quoted e-mail refers to the collation of facts contained in the comments:

From:    "Tim Rushing"
Date:    Mon, 08 Nov 2004 16:00:53 -0600
To:    Len Newman, "Karen Duffin"
CC:    Daniel Eggers
Subject:    Re: Fw: Grokline licensing question

> I now see there might be two problems with this approach. First, it may not
in
> advance be clear to the community that this is our plan and our view of the
> copyright implications.

Just to further respond to this point you raised.  It was always my
understanding that the site would work by aggregating the material presented in
the comments.  I think that while additional clarity there would not hurt, I do
not think that explaining that the system works that way is going to surprise
anyone.

I also should say that I had not considered your second point, and find it very
interesting.  Of course, if it is clear that each poster is licensing under the
CCL while retaining full copyright, then I think it is clear that it is
acceptable to use elements of their comments as long as the whole is released
under the CCL, which it will be as I understand it.

I look forward to participating,

    ---Tim Rushing

Len responded to this e-mail (on Nov 8) with a brief e-mail that said roughly: that he found the point interesting.  He saw the biggest problem being the forcing a poster to CCL their comment.  He then compared that to the transfer of copyright question and used the Novell/SCO APA as an example.  (Which doesn't apply in my mind since a notice that by posting they are also CCLing does not transfer copyright.)  Finally, he said that he felt that any comment use he would make would fall within fair use, so there was no need for the CCL.

I responded to this e-mail with:

From:    "Tim Rushing"
Date:    Mon, 08 Nov 2004 19:50:29 -0600
To:    Len Newman, "Karen Duffin"
CC:    Daniel Eggers
Subject:    Re: Fw: Grokline licensing question

snip quoted Newman section concerning the APA example

Yeah, I've been following the SCO issue quite closely.

However, I have to say that I don't see the problem with the CCL add-on.  You
aren't asking to transfer copyright at all.  You are asking that the poster
license their "work" under the same license that you give your work to
them.  I think the GPL comparison is very apt.

As you and the disclaimer at the bottom of all Grokline pages make clear, the
copyright still remains with the poster.

I imagine it could be argued that the poster is giving you an implied license to
reproduce their work by posting, since they know that is what is going to happen
to their comments.  All you are asking for is the additional proviso that the
work be offered under the same rules that all of the other site work is offered
under.

And, frankly, I can say that my preference really would be that all the work,
including comments, be CCL'd.

snip Newman comment that his use would fall under fair use

I think that this is likely the case.  However, my preference would still be to
CCL my comments.

    ---Tim Rushing

At this point, I got a brief response from Bruce Perens indicating that given what I had said he was a bit surprised, particularly because the non-commercial clause would make it fail any Open Source definition litmus test and that Bruce would look into it.  I responding by thanking him and forwarding all the correspondence that had occurred between Len and I.

Len finally responded with an e-mail that I received on "Date:    Wed, 10 Nov 2004 03:09:39 -0500."  In it he indicated that the day before had been very busy.  He says he is ccing Bruce Perens and others from the conference the day before, but all of them were bcc's so I do not know who else was involved.  He reports that they are sticking with CCL non-commercial because they have committed to it.  There is already a body of work on the Unix timeline project contributed with that understanding and that they had promise "Eric Levenez."  (NOTE:  I have not taken the time to figure out who Eric is.) He reiterates that not even OSRM can use the site commercially.  Finally, he spends some time indicating his concern regarding the CCL.  I would like to quote him but will attempt to paraphrase.  He indicates discomfort with relying on some assumption that a poster realized they were CCLing their comments.  He says that if he actually wanted to make extensive use of comments as written, he would prefer to get permission directly from the poster and make certain it was explicit.  He reiterates that he intends to use facts gleaned from the comments, so copyright is not a concern.  He closes by saying that he has asked that the CCL note when posted be removed.

I would like to say that it is possible that Len is being disingenous, but that impression does not come across.  He makes explicit statements that don't seem open for interpretation--though he has ignored some questions I have asked.  I would point out that the e-mail I just described comes after he has had time to consult with Bruce Perens and others the day before he sent it and two days after our last communication.  I have yet to receive any more e-mail conversation from him.

I responded with this, to which I have seen no reply:

From:    "Tim Rushing"
Date:    Wed, 10 Nov 2004 09:49:51 -0600
To:    "Len Newman"
CC:    "Daniel Eggers", "Bruce Perens"
Subject:    Re: Grokline

Thanks for taking all the time with me, Len.

A few final questions and I'll leave you alone.  I'm assuming from your comments
that you are going to hold the copyright on the work product that results from
all of this.  You have indicated that it is released under the CCL attribution,
non-commercial license and that licensing would preclude anyone including OSRM
from exploiting it commercially.

Can OSRM claim copyright on your work product as a work for hire, or is it clear
in the contract language that you retain full copyright?

Even if you retain full copyright, as the copyright holder, nothing in the CCL
license you have chosen would preclude you from relicensing on different terms
to others.  Is there any chance of getting a FAQ entry saying either that you
will not re-license except under the CCL or that if you re-license, you will
make the work product available to any and all comers on the same terms?

Thanks.  I've cc'd Daniel Eggers and Bruce Perens on this.  I'm not sure if it
should have gone anywhere else since the last cc's were bcc's, but please feel
free to forward this to any other relevant parties.

      ---Tim Rushing

Hmm. Not sure where to go with this, as I'm think you may not like the response.

As stated, the question isn't really relevant. As long as all the responses/contributions are publically available on Grokline, then of course OSRM has access and is permitted to use the information.

They may be restrained from using or quoting the actual posts by copyright and the CCL conditions, at least beyond fair use, but OSRM is undoubtedly more interested in the information related in those posts rather than the manner of expression.

- Groklaw's New Group Project: The Timeline Project
Posted by Pamela Jones on February 4th, 2004

I assume that's only the portion of the world that agrees with Pam on everything.

mikey: "In a recent email from Pamela Jones I have been told in no uncertain terms that discussion of OSRM on groklaw is off-topic and off limits, and that Grokline has 'nothing to do with Groklaw'."