On 3/12/2020 7:30 PM, Greg Troxel wrote:
Brian May <[email protected]> writes:
We (OSM-US) should really have a state by state guide on open records
laws per state. That would make the "license check" process
easier. Look up the state, get an answer. At least a quick answer to
start from.
Agreed in principle, but I think "open records" is off base. The real
issue is copyright, not whether we have a legal right to demand map data
held by the government.
No, its not off base. Here's a reference for you:
https://en.wikipedia.org/wiki/Microdecisions,_Inc._v._Skinner
This site seems to do a decent job of explaining public records per
state in a standardized format -
https://www.rcfp.org/open-government-guide/
Yes, but for the Massachusetts page (where I'm reasonably familiar with
the rules, having been subjected to mandatory trainign), it does not
mention copyright at all that I noticed.
This is the grey area and sounds like up for debate. However, as I
understand it, the omission of copyright assertion is a waiving of
copyright assertion. I am informed by the Microdecisions vs. Skinner case:
"Additionally, the Court confirmed "Florida's Constitution and its
statutes do not permit public records to be copyrighted unless the
legislature specifically states they can be."
But there could be further nuances I am missing.
But the state statutes are where you find the details and final
answers. If copyright is not mentioned at all in the statutes, then
its public domain, right?
I completely fail to understand how you conclude that. These state laws
and federal copyright laws act independently. Perhaps more importantly,
creative works (other than old or by the federal government) simply are
copyrighted.
Not according to the Skinner case, in Florida at least.
In MA, one can get a copy of public records, and one can disclose the
information, but I see no right to copy, distribute, or to create
derivative works. As an example my Conservation Commission publishes
trail maps. Copyright is held by the town under the work-for-hire
doctrine, and there's no license to copy granted, other than the "it's
ok to print this out and use it" implied grant.
So are you saying since MA public records laws do not specifically state
that agencies can copyright data, that towns default to everything is
copyrighted? I don't think so. But this is a grey area that needs to be
further explored, maybe state by state. What is the spirit of the law in MA?
In my view, if the state statutes do not allow governments operating
within the state to copyright public records OR don't mention it at
all, then you don't need to ask the government data provider for
permission at all, like in Florida.
That view might be right given enough case law, but it is remarkable and
in need of citations.
Skinner
The phrase "allow governments to copyright" does not make sense since
that's not how copyright works. If it were "prohibits the government
from enforcing copyright" and "prohibits the government from acquiring
data unless the government is authorized to grant licenses to
redistribute under CC0", that's something else.
Yes it does make sense. States decide whether agencies can copyright
data. Some specifically state you can, others state you can't and some
don't mention copyright at all. The ones that don't mention copyright
usually talk a lot about how data is open and there's no restrictions on
the data, which means no copyright. But if they don't specifically
address copyright, it muddies the water.
In this case, sounds like Colorado allows governments to copyright,
but this government chose not to. From what I've seen, the only time
they do try and exert copyright is if they are trying to make money on
the data. And even then, it seems like there's ways of skirting that,
e.g. grabbing data from a public facing ArcGIS Server.
I don't follow "grabbing". If there isn't a license, the fact that you
can get at the data doesn't seem to matter. That would be like copying
frmo google maps because you can.
Grabbing, aka writing code to extract data from a server. There has been
previous discussion on this topic, specifically regarding OpenAddresses.
I'm pretty sure they concluded copying data from a government server
that is publicly exposed to the Internet means any copyrighting has been
waived. That could be wrong, I don't know. Google is an obvious case as
are most private companies. We're talking governments here.
This seems like a topic for the OSM US Board to provide direction on.
Agreed. I think most states intend to grant
CC0/PD-with-attribution-requested terms, but the agencies are not
necessarily adequately copyright-pedantic, and a high-level contact
could be useful.
(I and others in .ma.us have discussed licensing with MassGIS and the
conversations have been highly reasonable.)
From what I've seen over the years, governments are moving more and
more open, but if the government started out with some overly protective
laws over "their", I mean the public's data, it can take a long time for
things to change. Georgia is an interesting example. The statutes
specifically cited GIS data as copyrightable, if the agency so desired,
and allowed charging whatever fees they wanted. So you have this
mish-mash of counties that are wide open / public domain and others that
charge $20k for a copy of parcel data and say its copyrighted. And at
the same time, private vendors are selling the same data for a few
hundred bucks. Not sure what is going on there. But I've talked to high
level people there and no-one likes the current situation, except the
agencies who can squeeze out a few $20k checks from big companies, and
its difficult to get such a mundane issue on the agenda for the
legislature to debate. But everyone knows the data needs to be more
open. Agencies can't even share data between some agencies.
We should probably move this discussion to imports-us, since its US
specific - agree?
Brian
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