[Imports] Permission Statement

[Kevin Kenny]

I was never able to get an explicit release from a New York official
for any of the State data.  It appears that nobody other than the
legislature has the authority to grant a general release of copyright.

But with that said, I was directed to the following as a policy statement:

https://docs.dos.ny.gov/coog/ftext/f15695.htm

While it is officially an 'advisory' opinion, the state agencies have
considered it binding on them to refrain from enforcing copyright in
any documents that the state produces in the ordinary course of its
business and releases to public access - which includes virtually all
the GIS data released to the public.  Accordingly, NYSGIS withdrew
from public distribution certain documents (notably a former 'Public
Lands' shapefile) that were produced by subcontractors who claimed
copyright and demanded conditions that applied to the recipients of
the data. The remaining documents on state sites are effectively in
the public domain. Even though the originating agencies can claim
copyright, the copyright is effectively unenforceable:

> Conditioning the release of copies on contractual agreements governing future treatment of the copies, in our opinion, would thwart the very purpose and intent of the Freedom of Information Law. It is our belief that when materials are accessible under the Freedom of Information Law, upon receipt of the appropriate fee, they must be released to the applicant without restriction. Accordingly, in keeping with the Second Circuit decision in County of Suffolk, we advise that it is permissible for the County to notify the applicant that the materials may be subject to copyright protection, but that the County cannot condition access on a contractual obligation pertaining to redisclosure of records accessible to any member of the public.

This opinion has the effect of restricting copyright enforcement in
government documents to those that are not accessible to the general
public; that is, ones covered by one or more of the exceptions
(usually relating to confidentiality) of the Freedom of Information
Law. Despite the 'advisory' status of the opinion, the fact that state
agencies have represented the data as unrestricted would raise the
defense of promissory estoppel were a future state administration to
change the policy.

Many states have this sort of policy, and a court would take a VERY
dim view of attempts to rebottle the genie.




On Thu, Mar 12, 2020 at 7:42 PM Greg Troxel <gdt at lexort.com> wrote:
>
> Mike Thompson <miketho16 at gmail.com> writes:
>
> > I found this in the Colorado Open Records Act (CORA)[0] which is the reason
> > I stated that state agencies could choose to copyright records (a further
> > question would be if these data are considered "lists or other
> > compilations", but perhaps best to focus on one question at a time):
> > 24-72-203
> > (4) Nothing in this article shall preclude the state or any of its agencies,
> > institutions, or political subdivisions from obtaining and enforcing trademark
> > or copyright protection for any public record, and the state and its agencies,
> > institutions, and political subdivisions are here by specifically authorized
> > to obtain and enforce such protection in accordance with the applicable federal
> > law; except that this authorization shall not restrict public access to or fair
> > use of copyrighted materials and shall not apply to writings which are merely
> > lists or other compilations.
>
> Another thing to consider is when government data is derived from a
> non-government copyrighted source.
>
> One simply has to talk to the data provider and get a clear statement
> that permission is granted to use the data.  I realize that can be
> difficult.
>
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--
73 de ke9tv/2, Kevin