It's an EULA (no thanks)

As an OSM contributor I feel the new licence is a mistake. It has some good points in that it grants permission under the database right that exists in some countries, as well as under copyright law. However what worries me is that it claims to be a contract with the user.

Free licences for software are always grants of permission - they give you the right to do something that copyright law would otherwise prevent. Remember what the GPL says: 'You do not have to accept this License, since you have not signed it.' This contrasts with proprietary EULAs, which (enforceably or not) often try to take away rights which you would otherwise have, such as reverse engineering.

The proposed licence does say that your fair dealing rights are not affected - but if so, why bother with the 'this is a contract' stuff? I never signed any contract to say that I would not distribute photocopies of the newspaper, or copy data from the phone book, yet I can still be sued if I do that. A contract is not necessary.

Additionally, if a licence is a grant of permission rather than a contract, that means you can go to court and apply for an injunction to stop distribution. The remedy for breach of contract, on the other hand, is monetary damages, and proving financial harm from infringing distribution of free software (or free map data) can be hard. So purely for legal reasons I think it is dangerous to claim the licence is a contract.

Some in the OSM project have argued that the new licence is necessary to give greater 'protection' to the data because some countries do not have a database right law. In those countries, a mere collection of facts might be copyable without infringing copyright, and so the OSM project would have no recourse. However, to me this is not a decision for the rights holder to make. If Ruritania decides not to offer protection for databases, that is a decision for the Ruritanian parliament to take. If, after consideration, they decide that Ruritania will not recognize a database right (or indeed, that copyright in that country will be limited to five years), so be it. It is not for the project to try to override national laws in the direction of greater restrictions.

It has been suggested that with the move to the new licence, anonymous downloads of the OSM database would have to be blocked. Everyone would have to click through the EULA before getting the data. I suggest that if you can no longer allow anonymous reading of what's meant to be a free database, you're doing it wrong.

(I will submit these comments to the OSM consultation - first I'm going to upload the mapping I did this afternoon around north London.)