Went and sent this from the wrong return address - trying again.
On Sun, Aug 12, 2018 at 4:26 PM Kevin Kenny wrote:
>
> On Sun, Aug 12, 2018 at 1:05 PM OSM Volunteer stevea
> wrote:
> > I'm not an attorney, though were I to attempt to sharpen focus on these two
> > replies, I'd say that in California, it's more like this: data produced by
> > state agencies (by our state government personnel "on the clock")
> > publishing them as "produced by the state of California" cannot have
> > onerous copyright terms/restrictions put upon them. They simply "belong to
> > the public." (This is especially true of GIS data, as in the County of
> > Santa Clara and Orange County/Sierra Club cases).
> >
> > So when you say "copyright...owned by the government," that is effectively
> > equivalent to "copyright owned by the People of the state" because of
> > California's Open Data laws and stare decisis (law determined by court
> > precedence/findings). Whether "public domain" is the correct legal term
> > I'm not sure, but if there is a distinction between the legality of
> > California-produced data and "the data are in the public domain" it is
> > either very subtle or completely non-existent; I consider
> > California-produced data "somewhere around, if not actually PD" and "fully
> > ODbL-compatible" for OSM purposes. So, (and I hope this dispels any
> > confusion and answers your question, Pine), "created by the government"
> > means they can't put "onerous copyright" on it, meaning it is effectively
> > owned by the People for any purpose for which We see fit.
>
> TL:DR: The closest answer to Clifford Snow's original question for New
> York is http://gis.ny.gov/gisdata/inventories/details.cfm?DSID=932
> which is virtually certain (the law, as always is muddy) to be
> ODBL-compatible (and in fact, there is a colourable case that it is in
> the Public Domain.) The digital raster quads available from
> https://gis.ny.gov/gisdata/quads/ (these are State, not USGS!) are
> also a potential data source for tracing, and again, aren't deeply
> mired in the legal swamp.
>
> Of course, as people like Frederik Ramm are quick to point out, no
> imported data are truly safe! (In the US system, a deep-pocketed
> plaintiff can simply bankrupt the defendant before the conclusion of a
> civil suit, and the law is particularly murky in the
> copyright-friendly Second Circuit, which comprises New York, Vermont
> and Connecticut.)
>
>
>
> I already sent Clifford Snow a reply in private email, but this
> deserves to be elaborated more in public, given how the conversation
> has turned.
>
> I am not a lawyer either, but as a scholar I have had to learn some of
> this stuff.
>
> I live in the Second Circuit, and the situation with respect to State
> and local government works is complicated here. The confusion stems
> from a decision rendered by the Second Circuit in the case of _Suffolk
> County v First American Real Estate Solutions_ (261 F. 3d 179 (2001):
> https://openjurist.org/261/f3d/179/county-v-first). First American was
> a real estate multiple listing service that had acquired Suffolk
> County's tax maps under New York's Freedom of Information Law, and was
> republishing them without license to its participating realtors.
> Suffolk County, motivated by the desire for cost recovery for the
> maintenance of the tax rolls, sued for copyright infringement. First
> American moved to dismiss, on the grounds that the Freedom of
> Information Law extinguished any copyright interest that Suffolk
> County might have had in the product. The district court initially
> denied the motion. On petition to reconsider, the district court
> agreed with First American that the Freedom of Information Law
> requires that Suffolk County may not use whatever copyright subsists
> in the tax maps to restrict their republication.
>
> The Second Circuit held that the Freedom of Information Law is fully
> satisfied as long as the public has the right to inspect the
> copyrighted records, and that FOIL does not extinguish the possibility
> of a copyright claim. Since it was ruling on a motion to dismiss,
> there was no ruling on the facts of the case, so the judicial opinion
> did not reach the argument of whether the maps had sufficient
> originality to survive a claim under the _Feist v Rural_ (499 U.S. 340
> (1991) -
> https://en.wikipedia.org/wiki/Feist_Publications,_Inc.,_v._Rural_Telephone_Service_Co.)
> standard. Suffolk's initial argument appears to have been crafted to
> follow the 'sweat of the brow' standard. Nevertheless, the Second
> Circuit accepted that the originality claim was sufficiently pleaded.
> Nevertheless, the opinion recognized that 'items such as street
> location and landmarks were "physical facts"-and thus not protected
> elements" (_Suffolk_ at 24) and that in an earier case it had 'thus
> focused on "the overall manner in which [the plaintiff] selected,
> coordinated, and arranged the expressive
