Do we have precedent for this? Can you truly not sue if you enter an agreement with someone to provide them with data that restricts their rights to use it, but the data is actually in the public domain? What about implicit agreements like TOS on a website?
These are pertinent concerns for which I have never found a definitive answer.
The first precedent passed in French appeal court and European court just a few months ago. I shall probably do a blog post to cover the case or nobody ever will.
It acknowledges software license (the GPL in that case) as a contract granting obligation to both parties and enforced it as a contract. The claims around copyright/counterfeit were pretty much dismissed (you can't pursue on both copyright and contract grounds in France because they are different legal responsibilities).
Since it's possible to make contracts on pretty much anything between two companies (but not for consumers), there's a chance that the openstreetmap contract has grounds irrelevant of the database rights.
It still doesn't make sense to me, because even if it is a contract, then the only reason for me to enter into that contract is because I have to do so in order to use the software (or database), due to the fact that it is protected by copyright.
If the software/data is not protected by copyright, I am free to use it without entering into any contract with anyone.
Reviewing the OSM Legal FAQ, it appears that they are very much based on copyright and licensing.
If the website/data is clearly associated with a contract (a license is a contract), it is in that case:
As a consumer, maybe it doesn't matter because there are many exceptions and loopholes for consumers (similarly to how EULA are void for a variety of reasons).
As a company however, company don't get consumer exceptions and are not given the benefits of the doubt, if a company decides to source data/software from somewhere, the company must have done the groundwork to ensure it can use the data and under what conditions. (In case I'm not clear, that means the company automatically read and agreed with the contract when using the data).
>>> due to the fact that it is protected by copyright.
Careful here. I think you might do the mistake of assuming that it's all about copyright and it might be wrong. (One angle is to try to void the contract, claiming that the data/database can't be subject to copyright and the contract has no ground).
Contracts like the GPL and Openstreetmap are not (only) about copyright. They are full fledged contracts with many pages, many clauses, that put obligation on both parties. They really are complicated contracts. They have a variety of grounds inside and outside of copyright.
The Appeal court and CJEU basically dismissed copyright/counterfeit claims in the first precedent few months ago, saying it's a contractual matter (short version, there's some nuances to it).
>>> Reviewing the OSM Legal FAQ, it appears that they are very much based on copyright and licensing.
License is a US legal concept that doesn't exist in Europe. In Europe there are only contracts, US licenses are interpreted as contracts (and if they don't satisfy the local requirements to form a contract they are void).
The problem is before the contract even gets a chance to be applicable.
If the data is there, I can just take and copy it. In fact, in order to display the data in my browser, multiple copies have already ben made.
The only reason that there's a limit to what I am allowed to do with that data, vs. what I can do with that data, is copyright. So if the data is protected under copyright, you can limit my copying and, for example, require me to agree to a contract in order that I may be allowed to copy it (and thus use it).
However, if the data is not protected under copyright, there is nothing stopping me from doing all the things to the data that I can, and so I can just ignore the contract you would like me to agree to.
> Contracts like the GPL and Openstreetmap are not (only) about copyright.
But they are based on copyright. Without copyright protection, nobody needs to enter into that contract.
> License is a US legal concept that doesn't exist in Europe.
A contract can state anything, especially between two companies, they're assumed to negotiate on equal footing and read everything, they don't get protections like consumers.
There is a possible strategy where you try to say that the data cannot be subject to copyright and you try to void the contract. You understand that. I think that's what you're talking about?
I am trying to tell you that there is a good chance that this strategy doesn't work. You're not gonna manage to void the contract like that.
The first case just passed in appeal court in France on the GPL. The court pretty much dismissed all copyright claims, they decided it's a contractual matter because there is a contract, the contract takes precedence over all copyright claims. (In the end they got some damages for "parasitism", it's a thing in French law where a company is profiting from work/investments taken by another company.)
Further clarifications then. In the US there are licenses and contracts, which are two separate fields of law.
In the EU (in France at least which I am more familiar) there are only contracts.
If you want to allow somebody to manufacture and sell some paintings for you (for example), you can draft a contract to allow them to do that. The contract could be called a licensing contract or a distribution contract. It's a regular contract, it's not a separate thing.
This causes a lot of confusion for US readers because they hear about licenses in EU and think it's the same as in the US but it isn't. That type of license is a contract governed by contract law. There is no separate license law like in the US.
My German is not good enough to comprehend all of that. It seems your link is talking about drafting contract for specific purposes (license to manufacture, license to distribute, license to use). It doesn't say that licenses aren't contracts.
These are pertinent concerns for which I have never found a definitive answer.